Title 32 — Professions and Occupations

Chapter 1 Architects, Engineers, Geologists, Home Inspectors, Landscape Architects and Surveyors

Article 1 Board of Technical Registration

§ 32-101 Purpose; definitions

A. The purpose of this chapter is to provide for the safety, health and welfare of the public through the promulgation and enforcement of standards of qualification for those individuals who are registered or certified and seeking registration or certification pursuant to this chapter.

B. In this chapter, unless the context otherwise requires:

1. "Advertising" includes business cards, signs or letterhead provided by a person to the public.

2. "Alarm" or "alarm system":

(a) Means any mechanical or electrical device that is designed to emit an audible alarm or transmit a signal or message if activated and that is used to detect an unauthorized entry into a building or other facility or alert other persons of the occurrence of a medical emergency or the commission of an unlawful act against a person or in a building or other facility.

(b) Includes:

(i) A silent, panic, holdup, robbery, duress, burglary, medical alert or proprietor alarm that requires emergency personnel to respond.

(ii) A low-voltage electric fence.

(c) Does not include a telephone call diverter or a system that is designed to report environmental and other occurrences and that is not designed or used to alert or cause other persons to alert public safety personnel.

3. "Alarm agent":

(a) Means a person, whether an employee, an independent contractor or otherwise, who acts on behalf of an alarm business and who tests, maintains, services, repairs, sells, rents, leases or installs alarm systems.

(b) Does not include any action by a person that:

(i) Is performed in connection with an alarm system located on the person's own property or the property of the person's employer.

(ii) Is acting on behalf of an alarm business whose work duties do not include visiting the location where an alarm system installation occurs.

4. "Alarm business":

(a) Means any person who, either alone or through a third party, engages in the business of either of the following:

(i) Providing alarm monitoring services.

(ii) Selling, leasing, renting, maintaining, repairing or installing a nonproprietor alarm system or service.

(b) Does not include any of the following:

(i) A person or company that purchases, rents or uses an alarm that is affixed to a motor vehicle.

(ii) A person who owns or conducts a business of selling, leasing, renting, installing, maintaining or monitoring an alarm that is affixed to a motor vehicle.

(iii) A person who installs a nonmonitored proprietor alarm for a business that the person owns, is employed by or manages.

(iv) The installation or monitoring of fire alarm systems.

(v) An alarm system that is operated by a city or town.

5. "Alarm subscriber" means any person who:

(a) Leases, rents or purchases any monitored alarm system or service from an alarm business.

(b) Leases or rents an alarm system.

(c) Contracts with an alarm business for alarm monitoring, installation, repair or maintenance services.

6. "Architect" means a person who, by reason of knowledge of the mathematical and physical sciences and the principles of architecture and architectural engineering acquired by professional education and practical experience, is qualified to engage in the practice of architecture and is registered as an architect pursuant to this chapter.

7. "Architectural practice" means any professional service or creative work requiring architectural education, training and experience, and the application of the mathematical and physical sciences and the principles of architecture and architectural engineering to such professional services or creative work as consultation, evaluation, design and review of construction for conformance with contract documents and design, in connection with any building, planning or site development. A person is deemed to practice or offer to practice architecture who in any manner represents that the person is an architect or is able to perform any architectural service or other services recognized by educational authorities as architecture.

8. "Board" means the state board of technical registration.

9. "Controlling person":

(a) Means a person who is designated by an alarm business.

(b) Does not include an alarm agent.

10. "Engineer" means a person who by reason of engineering education, training and experience may apply engineering principles and interpret engineering data.

11. "Engineering practice" means any professional service or creative work requiring engineering education, training and experience in applying engineering principles and interpreting engineering data to engineering activities that clearly impact the health, safety and welfare of the public and the engineering design of buildings, structures, products, machines, processes and systems to the extent that the engineering education, training and experience requirements prescribed by sections 32-122 and 32-122.01 are necessary to protect the health, safety and welfare of the public. The services or creative work may include providing planning services, studies, designs, design coordination, drawings, specifications and other technical submissions, surveying as prescribed in paragraph 22, subdivisions (d) and (e) of this subsection, and reviewing construction or other design products for the purposes of monitoring compliance with drawings and specifications related to engineered works. A person employed on a full-time basis as an engineer by an employer engaged in the business of developing, mining and treating ores and other minerals shall not be deemed to be practicing engineering for the purposes of this chapter if the person engages in the practice of engineering exclusively for and as an employee of such employer and does not represent that the person is available and is not represented as being available to perform any engineering services for persons other than the person's employer. A person is deemed to practice engineering if the person does any of the following:

(a) Practices any discipline of the profession of engineering or holds out to the public that the person is able and authorized to practice any discipline of engineering.

(b) Represents to the public that the person is a professional engineer by a verbal claim, sign, advertisement, letterhead or card or in any other manner.

(c) Uses a title that implies that the person is a professional engineer.

12. "Engineer-in-training" means a candidate for registration as a professional engineer who both:

(a) Is a graduate in an approved engineering curriculum of four years or more of a school approved by the board or has four years or more of education or experience, or both, in engineering work that meets standards specified by the board in its rules.

(b) Has passed the engineer-in-training examination.

13. "Firm" means any individual or partnership, corporation or other type of association, including the association of a nonregistrant and a registrant who offers to the public professional services regulated by the board.

14. "Geological practice" means any professional service or work requiring geological education, training and experience, and the application of special knowledge of the earth sciences to such professional services as consultation, evaluation of mining properties, petroleum properties and groundwater resources, professional supervision of exploration for mineral natural resources including metallic and nonmetallic ores, petroleum and groundwater, and the geological phases of engineering investigations.

15. "Geologist" means a person, who is not required to be a professional engineer, who by reason of special knowledge of the earth sciences and the principles and methods of search for and appraisal of mineral or other natural resources acquired by professional education and practical experience is qualified to practice geology as attested by registration as a professional geologist. A person who is employed on a full-time basis as a geologist by an employer engaged in the business of developing, mining or treating ores and other minerals is not deemed to be engaged in geological practice for the purposes of this chapter if the person engages in geological practice exclusively for and as an employee of such employer and does not represent that the person is available and is not represented as being available to perform any geological services for persons other than the person's employer.

16. "Geologist-in-training" means a candidate for registration as a professional geologist who both:

(a) Is a graduate of a school approved by the board or has four years or more of education or experience, or both, in geological work that meets standards specified by the board in its rules.

(b) Has passed the geologist-in-training examination.

17. "Home inspection" means a visual analysis for the purposes of providing a professional opinion of the building, any reasonably accessible installed components and the operation of the building's systems, including the controls normally operated by the owner, for the following components of a residential building of four units or less:

(a) Heating system.

(b) Cooling system.

(c) Plumbing system.

(d) Electrical system.

(e) Structural components.

(f) Foundation.

(g) Roof covering.

(h) Exterior and interior components.

(i) Site aspects as they affect the building.

(j) Pursuant to rules adopted by the board, swimming pool and spa.

18. "Home inspection report" means a written report that is prepared for compensation, that is issued after a home inspection and that clearly describes and identifies the inspected systems, structures and components of a completed dwelling and any visible major defects found to be in need of immediate major repair and any recommendations for additional evaluation by appropriate persons.

19. "Home inspector" means an individual who is certified pursuant to this chapter as a home inspector and who engages in the business of performing home inspections and writing home inspection reports.

20. "Landscape architect" means a person who, by reason of professional education or practical experience, or both, is qualified to engage in the practice of landscape architecture as attested by registration as a landscape architect.

21. "Landscape architectural practice":

(a) Means performing professional services such as consultations, investigation, reconnaissance, research, planning, design or responsible supervision in connection with the development of land and incidental water areas where, and to the extent that, the dominant purpose of such services is the preservation, enhancement or determination of proper land uses, natural land features, ground cover and planting, naturalistic and aesthetic values, the settings of and approaches to buildings, structures, facilities or other improvements, natural drainage and the consideration and the determination of inherent problems of the land relating to erosion, wear and tear, light or other hazards.

(b) Includes locating and arranging such tangible objects and features as are incidental and necessary to the purposes outlined in this paragraph.

(c) Does not include making cadastral surveys or final land plats for official recording or approval, nor mandatorily include planning for governmental subdivisions.

22. "Land surveying practice" means performing one or more of the following professional services:

(a) Measuring land to determine the position of any monument or reference point that marks a property line, boundary or corner for the purpose of determining the area or description of the land.

(b) Locating, relocating, establishing, reestablishing, setting, resetting or replacing of corner monuments or reference points that identify land boundaries, rights-of-way or easements.

(c) Platting or plotting of lands for the purpose of subdividing.

(d) Measuring by angles, distances and elevations natural or artificial features in the air, on the surface and immediate subsurface of the earth, within underground workings and on the surface or within bodies of water for the purpose of determining or establishing their location, size, shape, topography, grades, contours or water surface and depths, and the preparing and perpetuating field note records and maps depicting these features.

(e) Setting, resetting or replacing points to guide the location of new construction.

23. "Land surveyor" means a person who by reason of knowledge of the mathematical and physical sciences, principles of land surveying and evidence gathering acquired by professional education or practical experience, or both, is qualified to practice land surveying as attested by registration as a land surveyor. A person employed on a full-time basis as a land surveyor by an employer engaged in the business of developing, mining or treating ores or other minerals is not deemed to be engaged in land surveying practice for purposes of this chapter if the person engages in land surveying practice exclusively for and as an employee of such employer and does not represent that the person is available and is not represented as being available to perform any land surveying services for persons other than the person's employer.

24. "Land surveyor-in-training" means a candidate for registration as a professional land surveyor who both:

(a) Is a graduate of a school and curriculum approved by the board or has four years or more of education or experience, or both, in land surveying work that meets standards specified by the board in its rules.

(b) Has passed the land surveyor-in-training examination.

25. "Low-voltage electric fence" means a fence that meets all of the following requirements:

(a) Has an electric fence energizer that is powered by a commercial storage battery with a rated voltage of not more than twelve volts and that produces an electric charge on contact with the fence.

(b) Is completely enclosed by a nonelectric fence or wall.

(c) Is continuously monitored.

(d) Is attached to ancillary components or equipment such as closed circuit television systems, access controls, battery recharging devices and video cameras.

(e) Does not exceed ten feet in height or two feet higher than the nonelectric fence or wall described in subdivision (b) of this paragraph, whichever is higher.

(f) Has identification warning signs attached at intervals of not more than sixty feet.

(g) Is not installed in an area zoned exclusively for single family or multifamily residential use.

(h) Does not enclose property that is used for residential purposes.

26. "Monitored alarm" means a device that is designed to detect an entry on any premises and that if activated generates a notification signal.

27. "Person" means any individual, firm, partnership, corporation, association or other organization.

28. "Principal" means an individual who is an officer of the corporation or is designated by a firm as having full authority and responsible charge of the services offered by the firm.

29. "Professional engineer" means a person who, by reason of special knowledge of the mathematical and physical sciences and the principles and methods of engineering analysis and design acquired by professional education and practical experience, is qualified to practice engineering and is registered as a professional engineer pursuant to this chapter.

30. "Proprietor alarm" means any alarm or alarm system that is owned by an alarm subscriber who has not contracted with an alarm business.

31. "Registrant" means a person who is registered or certified by the board.

32. "Registration" means a registration or certification that is issued by the board.

§ 32-102 State board of technical registration; members; vacancies; terms

A. The state board of technical registration is established consisting of members who are appointed by the governor as follows:

1. One architect.

2. One professional engineer.

3. Six public members, at least one of whom has a legal, construction or design product background.

4. One landscape architect.

5. One geologist.

6. One land surveyor.

B. On the expiration of any of the terms, a successor who is qualified pursuant to subsection A of this section shall be appointed for a full term of three years. The governor may remove a member of the board for misconduct, incapacity or neglect of duty. Appointment to fill a vacancy caused other than by expiration of term shall be for the unexpired portion of the term.

C. A member may not serve more than two consecutive terms.

§ 32-103 Qualifications of members

A. Each professional member of the board shall:

1. Be at least twenty-five years of age.

2. Have been a resident of this state for at least three years immediately preceding appointment as a member.

B. Each member who is an architect, a geologist, a landscape architect, a professional engineer or a land surveyor shall have at least five years' active professional experience as attested by registration under this chapter.

§ 32-104 Compensation

Members of the board are eligible to receive compensation pursuant to title 38, chapter 4, article 1.

§ 32-105 Organization

The board shall annually elect from its membership a chairman, vice-chairman and secretary. It shall hold at least two regular meetings each year and such special or called meetings as the rules provide.

§ 32-106 Powers and duties

A. The board shall:

1. Adopt rules for conducting its meetings and performing duties imposed on it by law.

2. Adopt an official seal for attesting certificates of registration and other official papers and documents.

3. Consider and act on or delegate the authority to act on applications for registration or certification.

4. Conduct examinations for in-training and professional registration, except for an alarm business, a controlling person or an alarm agent.

5. Hear and act on complaints or charges that are specified by the complainant or direct an administrative law judge to hear and act on complaints and charges that are specified by the complainant.

6. Compel attendance of witnesses, administer oaths and take testimony concerning all matters coming within its jurisdiction. In exercising these powers, the board may issue subpoenas for the attendance of witnesses and the production of books, records, documents and other evidence it deems relevant to an investigation or hearing.

7. Keep a record of its proceedings.

8. Keep a register that shows the date of each application for registration or certification, the name of the applicant, the practice or branch of practice in which the applicant has applied for registration, if applicable, and the disposition of the application.

B. The board shall specify the proficiency designation in the branch of engineering in which the applicant has designated proficiency on the certificate of registration and renewal card issued to each registered engineer and shall authorize the engineer to use the title of registered professional engineer. The board shall decide what branches of engineering it shall recognize.

C. The board may investigate a complaint pursuant to subsection A, paragraph 5 of this section and may take any necessary disciplinary or enforcement action resulting from a complaint only if the complainant either:

1. Currently has a contractual relationship with the person who is the subject of the complaint or had a contractual relationship with the person at the time of the alleged misconduct.

2. Was harmed by the alleged misconduct or possesses firsthand knowledge of the alleged misconduct. For the purposes of this paragraph, "firsthand knowledge" includes knowledge of the outcome of the misconduct, witnessed by a person with relevant professional experience in the course of that person's contractual duties with the harmed individual.

D. The board may hold membership in and be represented at national councils or organizations of proficiencies registered under this chapter and may pay the appropriate membership fees. The board may conduct standard examinations on behalf of national councils and may establish fees for those examinations.

E. The board may employ and pay on a fee basis persons, including full-time employees of a state institution, bureau or department, to prepare and grade examinations given to applicants for registration or review an applicant's submissions of required documents for home inspector certification and regulation and may fix the fee to be paid for these services. These employees are authorized to prepare, grade and monitor examinations, review an applicant's submissions of required documents for home inspector certification and regulation and perform other services the board authorizes, and to receive payment for these services from the technical registration fund. The board may contract with an organization to administer the registration examination, including selecting the test site, scheduling the examination, billing and collecting the fee directly from the applicant and grading the examination if a national council of which the board is a member or a professional association approved by the board does not provide these services. If a national council of which the board is a member or a professional association approved by the board does provide these services, the board shall enter into an agreement with the national council or professional association to administer the registration examination.

F. The board may rent necessary office space and pay the cost of this office space from the technical registration fund.

G. The board may adopt rules establishing rules of professional conduct for registrants.

H. The board may require evidence it deems necessary to establish the continuing competency of registrants as a condition of renewal of licenses.

I. Subject to title 41, chapter 4, article 4, the board may employ persons as it deems necessary.

J. The board shall issue or may authorize the executive director to issue a certificate or renewal certificate to each alarm business and each controlling person and a certification or renewal certification card to each alarm agent if the qualifications prescribed by this chapter are met.

§ 32-106.01 Petition for injunction

A. The superior court may issue an injunction immediately upon a petition filed as provided in this section to enjoin the practice of any board regulated profession or occupation by any person not registered or certified to practice the occupations or exempt pursuant to this chapter from registration requirements.

B. In a petition for injunction pursuant to subsection A of this section, it shall be sufficient to charge that the respondent on a day certain in a named county engaged in the practice of any board regulated profession or occupation without a registration and without being exempt pursuant to this chapter from registration requirements. No showing of damage or injury shall be required.

C. Such petition shall be filed in the name of the state by the board or at the request of the board by the attorney general or any county attorney in any county where the respondent resides or may be found.

D. Issuance of an injunction shall not relieve the respondent from being subject to any proceedings pursuant to section 32-145, or otherwise. Any violation of an injunction shall be punished as contempt of court.

E. In all other respects, injunction proceedings pursuant to this section shall be governed by title 12, chapter 10, article 1.

§ 32-106.02 Authority to investigate; civil penalties

A. The board may initiate a hearing pursuant to title 41, chapter 6, article 10 on receipt of a complaint that a person who is not exempt from this chapter and is not registered or certified under this chapter is practicing, offering to practice or by implication purporting to be qualified to practice any board regulated profession or occupation. The board shall give notice of the hearing by mailing a copy of the complaint to the person's last known address by certified mail return receipt requested.

B. If after the hearing the board determines that based on the evidence the person committed a violation under section 32-145, it, in addition to any other sanction, action or remedy, shall issue an order that imposes a civil penalty of no more than two thousand dollars per violation.

C. In determining the amount of the civil penalty it imposes, the board shall consider:

1. The seriousness of the violation.

2. The economic benefit to the violator that was generated by the violator's commission of the violation.

3. The violator's history of violations.

4. Any other considerations the board deems appropriate.

D. Except as provided in section 41-1092.08, subsection H, a person may seek judicial review of a final administrative decision made or order issued pursuant to this section pursuant to title 12, chapter 7, article 6.

E. If a person fails to pay a civil penalty that the board imposes within thirty days after the board issues the order or if the order is stayed pending appeal within ten days after the court enters a final judgment in favor of the board, the board shall notify the attorney general. The attorney general may commence a civil action to recover the penalty.

F. An action to enforce an order that was issued under this section may be combined with a petition for injunction under section 32-106.01.

G. The board shall deposit, pursuant to sections 35-146 and 35-147, all civil penalties collected under this section in the state general fund.

§ 32-107 Executive director; duties; compensation

A. The board may employ an executive director to conduct investigations and carry out the purposes of this chapter.

B. The executive director shall be the custodian of the records of the board, receive applications for registration and certification and, if authority is delegated by the board, issue registrations and certifications as authorized by the board, file complaints with the proper officials against violators of any provision of this chapter, assist in the prosecution of such cases and perform other duties the board prescribes.

C. The executive director is eligible to receive compensation as determined pursuant to section 38-611.

§ 32-108 Low-voltage electric fence alarm systems; regulation; state preemption

The regulation of low-voltage electric fence alarm systems is of statewide concern. The regulation of low-voltage electric fence alarm systems pursuant to this chapter and their use is not subject to further regulation by a county, city, town or other political subdivision of this state.

§ 32-109 Technical registration fund

(L24, Ch. 222, sec. 1. Eff. until 7/1/28)

A. Pursuant to sections 35-146 and 35-147, the executive director shall deposit fifteen percent of all fees or other revenues received by the board in the state general fund to assist in defraying the cost of maintaining the state government and shall deposit the remaining eighty-five percent in the technical registration fund to be used only in defraying expenses of the board and in prosecuting violations of this chapter.

B. Monies deposited in the technical registration fund pursuant to subsection A of this section are subject to section 35-143.01.

§ 32-109 (Version 2) Technical registration fund

(L24, Ch. 222, sec. 2. Eff. 7/1/28)

A. Pursuant to sections 35-146 and 35-147, the executive director shall deposit ten percent of all fees or other revenues received by the board in the state general fund to assist in defraying the cost of maintaining the state government and shall deposit the remaining ninety percent in the technical registration fund to be used only in defraying expenses of the board and in prosecuting violations of this chapter.

B. Monies deposited in the technical registration fund pursuant to subsection A of this section are subject to section 35-143.01.

§ 32-110 Immunity from personal liability

Members, agents and employees of the board, members of advisory committees and statutorily established committees of the board and registrants volunteering professional services to emergency services personnel at the scene of a disaster as part of an authorized board program are immune from personal liability with respect to acts done and actions taken in good faith within the scope of their authority.

§ 32-113 Preemption; power of local authorities

A. The state legislature determines that the licensure, certification or registration of alarm businesses and alarm agents is a matter of statewide concern. The power to license, register or certify an alarm business or alarm agent is preempted by this state.

B. The board, a county, a city, including a charter city, or a town shall not require an alarm business to provide any information regarding the alarm subscribers of the alarm business without a court order.

C. A county, city, including a charter city, or town that violates this section shall reimburse a prevailing party for fees and expenses. A court may assess civil penalties against the county or city.

Article 2 Registration and Certification

§ 32-121 Certificate or registration required for practice

Except as otherwise provided in this section, a person or firm desiring to practice any board-regulated profession or occupation shall first secure a certificate or registration and shall comply with all the conditions prescribed in this chapter. An alarm business or an alarm agent may install alarms if all of the following apply:

1. The alarm business has submitted an application for certification pursuant to section 32-122.05 or is a licensed contractor pursuant to chapter 10 of this title.

2. Each controlling person has submitted an application and proof of a valid fingerprint clearance card to the board pursuant to section 32-122.05.

3. The alarm agent has submitted an application and applied for a fingerprint clearance card pursuant to section 32-122.06.

§ 32-122 Qualifications for in-training designation

(L22, Ch. 59, sec. 43)

A. An applicant for in-training designation as an engineer, geologist or land surveyor shall:

1. Be a graduate of a school approved by the board or have four years or more of education or experience, or both, in work in the profession in which registration is sought that meets standards specified by the board in its rules.

2. Unless exempt under section 32-126, subsection D, pass the in-training examination in the profession in which registration is sought.

B. An applicant for in-training designation as an assayer shall:

1. Be a graduate of a school and curriculum approved by the board or have four years or more of education or experience, or both, in work in the profession in which registration is sought that meets standards specified by the board in its rules.

2. Unless exempt under section 32-126, subsection D, pass the in-training examination in the profession in which registration is sought.

§ 32-122 (Version 2) Qualifications for in-training registration

(L22, Ch. 59, sec. 44)

A. An applicant for in-training registration as an architect, engineer, geologist or landscape architect shall:

1. Be a graduate of a school approved by the board or have four years or more, or if an applicant for in-training registration as an architect, five years or more, of education or experience, or both, in work in the profession in which registration is sought that meets standards specified by the board in its rules.

2. Unless exempt under section 32-126, subsection D, pass the in-training examination in the profession in which registration is sought.

B. An applicant for in-training registration as a land surveyor shall:

1. Be a graduate of a school and curriculum approved by the board, or have four years or more of education or experience, or both, in work in the profession in which registration is sought that meets standards specified by the board in its rules.

2. Unless exempt under section 32-126, subsection D, pass the in-training examination in the profession in which registration is sought.

C. An applicant for in-training registration as a home inspector-in-training shall meet the requirements of section 32-122.02, subsection A, paragraphs 1 through 6.

§ 32-122.01 Qualifications for professional registration

A. An applicant for professional registration as an architect, engineer, geologist or landscape architect shall:

1. Be actively engaged in education or experience, or both, in the profession for which registration is sought for at least eight years.

2. Unless exempt under section 32-126, pass the applicable in-training and professional examinations in the profession in which registration is sought.

B. An applicant for professional registration as a land surveyor shall:

1. Be actively engaged in education or experience, or both, in the profession for which registration is sought for at least six years.

2. Unless exempt under section 32-126, pass the in-training and professional examinations in the profession in which registration is sought.

C. In computing the period of active engagement required under this section:

1. Each year of study that is satisfactorily completed in an architectural, engineering, geological or landscape architectural school approved by the board is equivalent to one year of active engagement up to a maximum of five years. One year or more of teaching architectural, engineering, geological or landscape architectural subjects in a school approved by the board is equivalent to one year of active engagement.

2. Each year of study satisfactorily completed in a land surveying curriculum and school approved by the board is considered equivalent to one year of active engagement up to a maximum of four years. One year or more of teaching land surveying or other courses approved by the board as pertinent to the profession in which registration is sought in a school approved by the board is equivalent to one year of active engagement.

D. Except as provided in subsection E of this section, experience credited by the board under this section and sections 32-101, 32-122 and 32-126 must be attained under the direct supervision of a professional who is satisfactory to the board and registered in this state, another state or a foreign country in the profession in which the applicant is seeking registration, except that up to one year's experience may be attained under the direct supervision of a professional who is satisfactory to the board and registered in another profession regulated under this chapter in this state, another state or a foreign country.

E. By a two-thirds majority vote, the board may allow an applicant except for an architect applicant to meet the requirements of subsection D of this section by crediting comparable experience satisfactory to the board that the applicant attained without direct supervision of a registered professional.

§ 32-122.02 Certification of home inspectors; insurance

A. An applicant for certification as a home inspector shall:

1. Be at least eighteen years of age.

2. Have passed within two years preceding application a written examination that is approved by the board and that meets the competency standards adopted by the board.

3. Have passed a course of study that meets the standards approved by the board.

4. Pay a fee as determined by the board and for initial certification shall provide to the board evidence of having a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1.

5. Not have had a certificate denied or revoked pursuant to this chapter within one year immediately preceding the application.

6. Have received an absolute discharge from sentence at least five years before the application if the person has been convicted of one or more felonies.

7. Provide evidence of the applicant's ability to obtain financial assurance as provided by subsection B of this section.

B. Within sixty days after certification and before any fee-based home inspection is performed, a home inspector certified pursuant to this chapter shall file one of the following financial assurances pursuant to rules adopted by the board:

1. Errors and omissions insurance for negligent acts committed in the course of a home inspection in an amount of $200,000 in the aggregate and $100,000 per occurrence.

2. A bond that is retroactive to the certification date in the amount of $25,000 or proof that minimum net assets have a value of at least $25,000.

C. If a home inspector loses or otherwise fails to maintain a required financial assurance, the certification shall be automatically suspended and shall be reinstated if a financial assurance is obtained within ninety days. If a financial assurance is not obtained within ninety days, the certification shall be automatically revoked.

D. A home inspector is subject to this chapter and rules adopted pursuant to this chapter.

E. Except as provided in subsection A, paragraph 4 of this section, the board may not require the submission of a fingerprint clearance card for certification renewal or any other purpose.

§ 32-122.03 Qualifications for registration; reciprocity or endorsement

A. Notwithstanding section 32-122.01, a person who meets the qualifications for registration pursuant to this section is eligible for registration.

B. An applicant for professional registration as a professional engineer, architect, land surveyor or landscape architect in this state through reciprocity or endorsement shall hold both of the following:

1. A valid license, registration or certification issued by the proper authority of either:

(a) Another state, territory, district or possession.

(b) A country participating in the applicable profession's national council mutual recognition agreement.

2. A certification or model law designation from the applicable profession's national council.

C. In addition to the requirements prescribed by subsection B of this section, an applicant for registration as a:

1. Professional engineer through reciprocity or endorsement shall hold a record from the profession's national council verifying that the person meets at least one of the following in the branch of engineering in which registration is sought:

(a) Has at least four years of experience following the person's licensure, registration or certification by the other jurisdiction.

(b) Passed a professional national examination.

(c) Earned a baccalaureate or equivalent degree or a postgraduate degree.

2. Land surveyor through reciprocity or endorsement shall pass the examination relating to surveying methods and legal principles in this state as prescribed by the board in rule.

§ 32-122.05 Certification of alarm businesses and controlling persons; applications; fingerprinting; fee; renewal

A. The board shall issue certificates to alarm businesses and controlling persons. An alarm business may not operate until the alarm business and each of its controlling persons submit applications and receive certification from the board. A separate certificate is required for each business name under which an alarm business conducts business or advertises, except that one certificate may be used for two businesses with the same ownership. To obtain an alarm business certificate, each controlling person of the alarm business shall provide proof to the board of having a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1. All alarm business certificates and controlling person certificates issued pursuant to this article are valid for three years from the date of issuance.

B. An application for an alarm business certificate and for a controlling person certificate shall include:

1. The name, business address, mailing address and telephone number of the alarm business. If the applicant is a corporation, general or limited partnership, limited liability company or other legal entity, the applicant shall state the name of the alarm business exactly as shown in its articles of incorporation, charter, certificate of limited partnership, articles of organization or other organizational documents, as applicable, together with the state and date of incorporation and the name, residence address and date of birth of each controlling person. If one or more of the partners, members or shareholders of the applicant is a corporation or other legal entity, the provisions of this subsection relating to information required of a corporation apply.

2. If the alarm business is a corporation, general or limited partnership, limited liability company or other legal entity, designation of one of its designated controlling persons to have full authority, act as the alarm business's contact with the board and be responsible for the alarm business's compliance with this chapter. Each designated controlling person shall complete and sign all application forms required of an individual alarm agent applicant under this article. The alarm business shall also provide a copy of the corporation, partnership or limited liability company formation documents to the board.

3. The name of the alarm business and each controlling person, any alias or other name used or by which the alarm business or any controlling person has been previously known and the current residence and business addresses, telephone numbers, including fax numbers, and e-mail addresses of each alarm business and each controlling person.

4. The names and addresses of the alarm agents who are employed by the alarm business.

5. Proof that the person submitting the application and each controlling person are at least eighteen years of age as indicated on a current driver license or other picture identification document that is issued by a governmental agency.

6. Two current two-inch by two-inch photographs of each controlling person.

7. Information as to whether the applicant or any controlling person, or the business on behalf of which the certificate is being applied for, has ever been refused or denied any similar registration, certificate, license or permit or has had any similar license or permit revoked, canceled or suspended and the reason or reasons for the revocation, cancellation or suspension.

8. Whether the person submitting the application or any controlling person has been convicted of a felony or misdemeanor.

C. In addition to the application requirements prescribed in subsection B of this section, an applicant for an alarm business certificate and an applicant for a controlling person certificate shall pay a fee as determined by the board.

D. An applicant for an initial alarm business certificate or an initial controlling person certificate or an applicant for a renewal of an alarm business certificate or a controlling person certificate shall notify the board, in writing, of any change in the information contained in the certificate application or renewal application, including the names of controlling persons or alarm agents that have left the applicant's employment. The applicant shall notify the board within fifteen calendar days after the occurrence of the change.

E. An alarm business and each controlling person shall file an application for a certificate renewal with the board no later than fourteen days before the expiration of the certificate that is currently in effect. If a certificate expires without the alarm business or controlling persons having submitted a timely application for renewal, the alarm business may not operate until the holder of the expired certificate files a new application for an initial certificate.

§ 32-122.06 Certification of alarm agents; fee; fingerprinting; temporary certification; renewal

A. Each alarm agent shall apply for an alarm agent certification and a renewal certification card from the board. The board shall issue or deny an alarm agent certification card or a renewal certification card within ten business days after receiving an administratively complete application that includes an explanation of any criminal or disciplinary history. All alarm agent certificates issued pursuant to this article are valid for three years from the date of issuance.

B. To obtain an alarm agent certificate, a person shall submit an application to the board, pay a fee as determined by the board and provide to the board evidence of having a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1. On receipt of the application and on the third anniversary of the initial certification for as long as the person is an alarm agent, the board shall verify with the department of public safety the status of the alarm agent's fingerprint clearance card. This subsection does not apply if the alarm agent is also the controlling person and has complied with section 32-122.05. An alarm agent certificate remains valid only if the person maintains a valid fingerprint clearance card.

C. A person shall apply for an alarm agent certificate within five working days after being employed by an alarm business. A person may not work as an alarm agent until the application is processed and approved unless the person is under the direct supervision of a certified alarm agent or unless the alarm business employing an alarm agent who is applying for an initial alarm agent certificate certifies that the alarm business has determined through a privately administered background check by a nationally recognized database company that the applicant has not been convicted of a crime that would prevent the applicant from receiving a fingerprint clearance card. The alarm business employing the alarm agent shall provide a copy of the background check to the board on request. A copy of the application showing that the application has been filed with the board and that a background check has been conducted is valid as a sixty-day temporary certification under this subsection. The sixty-day temporary certification may be extended for a period not to exceed an additional thirty days if the applicant shows good cause to the board. When the applicant receives a fingerprint clearance card, the applicant shall provide a copy of the fingerprint clearance card to the board within ten days. If the board determines that a person is working as an alarm agent without a valid certification or temporary certification, the board shall notify the alarm business. A person is subject to disciplinary action and penalties pursuant to this chapter.

D. An alarm agent shall physically possess the agent's alarm agent certification card when performing or authorizing the performance of any task pursuant to this chapter.

E. An alarm agent certificate card becomes the personal property of the person to whom it is issued. The person shall retain possession of the card.

F. If an alarm agent's employment with an alarm business is terminated, the alarm agent shall notify the board in writing within fifteen days after the termination.

§ 32-122.07 Denial of alarm business, controlling person or alarm agent certification; appeal

A. The board may deny an application for certification as an alarm business, controlling person or alarm agent if a controlling person of an alarm business or an alarm agent has been convicted of an act involving moral turpitude.

B. If the board denies an application for certification as an alarm business, controlling person or alarm agent, the board shall send notice of its action by certified mail to the applicant, setting forth the reasons for the action taken.

C. Within thirty days after the date of the notice, the applicant may request a hearing before the board pursuant to title 41, chapter 6, article 10.

§ 32-123 Application for registration and certification; denial; hearing

A. A person desiring to practice any board-regulated profession or occupation shall apply for registration or certification on a form prescribed by the board, subscribed under penalty of perjury and accompanied by the appropriate application fee prescribed by the board. If the evidence submitted satisfies the board that the applicant is fully qualified to practice the profession or occupation for which registration or certification is asked, the board or the executive director as authorized by the board shall grant the applicant a certificate of registration or certification, signed by the chairman and secretary and attested by the official seal. If the applicant seeks registration as a professional engineer, the certificate of registration shall list the proficiency designation in the branch of engineering in which the applicant has demonstrated proficiency.

B. A registered professional engineer who desires to practice land surveying shall apply for professional registration as a land surveyor and satisfy the requirements set forth in section 32-122.01.

C. If in the judgment of the board the applicant has not furnished satisfactory evidence of qualifications for registration or certification, it may require additional data or may require the applicant to submit to an additional oral or written examination specified by the board in its rules.

D. An applicant whose application is denied may request a formal hearing pursuant to title 41, chapter 6, article 10. If the application is granted after a formal hearing, the application fee shall be returned.

§ 32-124 Schedule of fees; exemption

A. The board shall establish a schedule of fees for the following:

1. Examinations.

2. Applications.

3. Renewals.

4. Board publications.

5. Computer printouts of names of registrants.

6. Photocopies.

7. Copies of audiotapes, videotapes, computer discs or other media used for recording sounds, images or information.

8. Replacement certificates of registration.

9. Review of examinations.

10. Regrading of examinations.

11. Returned checks.

B. The board is exempt from the requirements of title 41, chapter 6 in establishing a fee schedule for the fees in subsection A, paragraphs 1, 2, 3, 9 and 10.

§ 32-125 Seals for registrants

A. The board shall adopt and prescribe seals for use by registrants who are required by the board to use seals. Each seal shall bear the name of the registrant and shall state the profession in which the registrant is permitted to practice and, in the case of engineering, the branch or branches of engineering in which the registrant has demonstrated proficiency, and other data the board deems pertinent.

B. Plans, specifications, plats or reports prepared by a registrant or a registrant's bona fide employee shall be issued under the registrant's seal if the board requires the registrant to use a seal.

C. It is unlawful for a registrant whose certificate has expired or has been revoked or suspended to use the seal.

D. It is unlawful for any nonregistrant to cause or permit the illegal use of a registrant's seal, signature or stamp on any document prepared by the nonregistrant.

E. If the board requires a registrant to use a seal, the registrant is responsible for all documents that the registrant signs, stamps or seals, including those documents prepared by the registrant's bona fide employee.

§ 32-126 Exemptions from examination requirement

A. The board shall waive the examination requirement for an applicant, other than an applicant for professional registration as a land surveyor, who satisfies any one of the following:

1. Holds a valid certificate of registration in good standing issued by another state or foreign country which has or had requirements for registration substantially identical to those of this state.

2. Holds a certificate of qualification in good standing issued by a national bureau of registration or certification recognized by the board.

3. Has been actively engaged in another state or foreign country as a professional registrant in the profession in which registration is sought for at least ten years and holds a valid certificate of registration in good standing issued by that state or country.

B. A registered professional engineer who holds a proficiency designation in one branch of engineering in this state and seeks an additional or different proficiency designation shall submit evidence to the board of either:

1. Four years of experience acceptable to the board as a registered professional engineer practicing in that branch of engineering in which the person seeks the proficiency designation.

2. Successful completion of the professional examination in the branch of engineering in which the applicant seeks the proficiency designation.

C. An applicant for professional registration as a land surveyor who satisfies any one of the requirements of subsection A shall pass the part of the professional land surveyor examination relating to surveying methods and legal principles in this state prescribed by the board in its rules.

D. The board shall exempt an applicant from the in-training examination if the applicant is a graduate of a school and curriculum approved by the board and has been actively engaged in experience in the profession for which registration is sought for at least twelve years after graduation.

§ 32-127 Renewal of certification or registration; penalty fee; cancellation; inactive status; renewal fees; home inspector exam requirement

A. The board shall establish a system for renewing certification or registration.

B. Except as provided in section 32-4301, certificates of registration or certification are invalid after their expiration date unless renewed by payment of the required renewal fee. If the renewal fee is not paid prior to the expiration date, it shall be accompanied by a penalty fee equal to one-sixth of the renewal fee for each year or fraction of a year of delinquency.

C. The board shall cancel a certificate of registration or certification if the registration or certification has remained invalid for at least one renewal period. Before the board may issue a valid registration or certification:

1. If the registration or certification has been invalid for less than five years or has been invalid for at least five years but the person has practiced as a licensed, certified or registered professional in that profession in another jurisdiction for the five years immediately before the date of the person's application with the board:

(a) The person shall apply as a new candidate and pay the application fee.

(b) The person is not required to take and pass the applicable professional examination.

2. If the registration or certification has been invalid for at least five years and the person has not practiced as a licensed, certified or registered professional in that profession in any other jurisdiction for the five years immediately before the date of the person's application with the board, the person shall apply as a new candidate, pay the application fee and take and pass the professional examination.

D. A registrant shall not practice, offer to practice or advertise if the certificate of registration or the certification is inactive or invalid.

E. A registrant who retires from the active practice of any board-regulated profession or occupation or who is not currently practicing that board-regulated profession or occupation in this state may request that the board place the registrant's certificate of registration or certification on inactive status. The registrant shall submit the request in writing to the board.

F. If the board has invalidated, pursuant to subsection B of this section, the certificate of registration of a registrant who seeks to place the certificate of registration on inactive status, the registrant shall submit all penalty fees that are due with the registrant's application for inactive status.

G. A registrant shall not place the registrant's certificate of registration on inactive status if the person's certificate of registration has been canceled by the board pursuant to subsection C of this section.

H. A registrant who holds an inactive certificate of registration may apply to the board to reactivate the certificate of registration. The board shall reactivate an inactive certificate of registration if the registrant submits a completed application on a form prescribed by the board and meets the qualifications for professional registration set forth in section 32-122.01. A registrant who seeks reactivation of the registrant's certificate of registration and who has not been engaged in the profession in which the registrant seeks reactivation for the five years immediately preceding the date of the application for reactivation shall take the applicable professional examination.

I. The board shall establish the renewal fee for each certificate or registration issued pursuant to this chapter.

J. Notwithstanding subsection C of this section, a home inspector who has had a certification canceled pursuant to subsection C of this section shall apply as a new candidate and pay the application fee. If the applicant has not taken and passed the board-approved national examination within the two years immediately preceding the date of application, the applicant shall take and pass the examination for certification.

§ 32-128 Disciplinary action; letter of concern; judicial review

A. The board may take the following disciplinary actions, in combination or alternatively:

1. Revocation of a certification or registration.

2. Suspension of a certification or registration for a period of not more than three years.

3. Imposition of an administrative penalty of not more than two thousand dollars for each violation of this chapter or rules adopted pursuant to this chapter.

4. Imposition of restrictions on the scope of the registrant's practice.

5. Imposition of peer review and professional education requirements.

6. Imposition of probation requirements that are best adapted to protect the public safety, health and welfare and that may include a requirement for restitution payments to professional services clients or to other persons suffering economic loss resulting from violations of this chapter or rules adopted pursuant to this chapter.

7. Issuance of a letter of reprimand informing a person regulated under this chapter of a violation of this chapter or rules adopted by the board.

B. The board may issue a letter of concern if the board believes there is insufficient evidence to support disciplinary action against the registrant or home inspector but sufficient evidence for the board to notify the registrant or home inspector of the board's concern. A letter of concern is a public document.

C. The board may take disciplinary action against the holder of a certificate or registration under this chapter who is charged with the commission of any of the following acts:

1. Fraud or misrepresentation in obtaining a certificate of qualification, whether in the application or qualification examination.

2. Gross negligence, incompetence, bribery or other misconduct in the practice of the profession.

3. Aiding or abetting an unregistered or uncertified person to evade this chapter or knowingly combining or conspiring with an unregistered or uncertified person, or allowing one's registration or certification to be used by an unregistered or uncertified person or acting as agent, partner, associate or otherwise of an unregistered or uncertified person, with intent to evade this chapter.

4. Violation of this chapter or board rules.

5. Failing to pay a collaborating registered professional within seven calendar days after the registrant receives payment from a client unless specified otherwise contractually between the prime professional and the collaborating registered professional. For the purposes of this paragraph, "collaborating registered professional" means a registered professional with whom the prime professional has a contract to perform professional services.

D. The board may make investigations, employ investigators and expert witnesses, appoint members of advisory committees and conduct hearings to determine whether a disciplinary action should be taken against the holder of a certificate or registration under this chapter.

E. An investigation may be initiated on receipt of an oral or written complaint. The board, on its own motion, may direct the executive director to file a verified complaint charging a person with a violation of this chapter or board rules and shall give notice of the hearing pursuant to title 41, chapter 6, article 10. The executive director shall then serve on the accused, by either personal service or certified mail, a copy of the complaint together with notice setting forth the charge or charges to be heard and the time and place of the hearing, which shall not be less than thirty days after the service or mailing of notice.

F. A person who has been notified of charges pending against the person shall file with the board an answer in writing to the charges not more than thirty days after service of the complaint and notice of hearing. If a person fails to answer in writing, it is deemed an admission by the person of the act or acts charged in the complaint and notice of hearing. The board may then take disciplinary action pursuant to this chapter without a hearing.

G. A disciplinary action may be informally settled by the board and the accused either before or after initiation of hearing proceedings.

H. On its determination that any person has violated this chapter or a rule adopted pursuant to this chapter, the board may assess the person with its reasonable costs and expenses, including attorney fees, incurred in conducting the investigation and administrative hearing. All monies collected pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the technical registration fund established by section 32-109 and shall only be used by the board to defray its expenses in connection with investigation related training, disciplinary investigations and hearings. Notwithstanding section 35-143.01, these monies may be spent without legislative appropriation.

I. The board shall immediately notify the clerk of the board of supervisors of each county in the state of the suspension or revocation of a certificate or of the reissuance of a suspended or revoked certificate.

J. Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-129 Confidentiality

A. Examination material, file records of examination grading and performance, transcripts of educational institutions, letters of inquiry and reference concerning applicants and board inquiry forms concerning applicants are confidential and are not subject to inspection pursuant to title 39, chapter 1, article 2.

B. Investigation files of any investigation are confidential and are not subject to inspection pursuant to title 39, chapter 1, article 2 until the matter is final, a hearing notice is issued pursuant to title 41, chapter 6, article 10 or the matter is settled by consent order. However, the registrant shall be informed of and have access to the complaint and investigative assessments and the public may obtain information that an investigation is being conducted and of its general nature.

C. Informal conferences held by advisory committees are confidential and are not open to the public. All information, including any minutes or reports created or obtained pursuant to an informal conference, is confidential until the matter is final, a hearing notice is issued pursuant to title 41, chapter 6, article 10 or the matter is settled by consent order. The board may discuss matters that are being reviewed by an advisory committee in open session but may not introduce confidential documents into public board records.

§ 32-130 Review of drawings, plans or design specifications by public agencies

Any modifications, except for building code compliance reviews, field inspections and applicable design standards, to drawings, plans or design specifications submitted for review to the state or a political subdivision of the state and that are made by a professional registrant employed or under contract with the state or a political subdivision of the state shall be signed by and issued under the seal of the reviewing registrant.

§ 32-131 Assayer emeritus status

The board shall grant assayer emeritus status to an assayer who is registered by the board pursuant to this chapter on August 6, 2016 if both of the following apply:

1. The assayer has not received any complaints during the assayer's active registration.

2. The assayer analyzes metals, ores, minerals or alloys to ascertain the quantity of gold or silver or any other substance present in the metals, ores, minerals or alloys.

Article 3 Regulatory Provisions

§ 32-141 Firm registration

A. A firm shall not engage in the practice of any board-regulated profession or occupation unless the firm is registered with the board and the professional services are conducted under the full authority and responsible charge of a principal of the firm, who is also a registrant.

B. A person shall file a registration application for each branch office that is located in this state and that is part of a firm registered with the board. The branch office application shall list a designated registrant having full authority and responsible charge of the professional services of that branch office. The designated registrant in a branch office need not be a principal of the firm.

C. A firm wishing to offer professional services in this state shall file with the board an application for registration on a form that is provided by the board and accompanied by the appropriate application fee as prescribed by the board. Firms shall also identify responsible registrants by the registrant's registration certificate number. Each firm shall list a description of the services the firm is offering to the public. The board shall be notified in writing within thirty days of any change occurring in the registered principals, any change in the firm's name or address or any change in a branch office address or designated registrant. Except as provided in section 32-4301, a new application shall be filed each year by the firm within thirty days of the anniversary date of the original firm registration.

D. No firm may advertise its availability to perform home inspections by home inspectors certified pursuant to this chapter unless each home inspection is performed by a home inspector certified pursuant to this chapter and each home inspection report is prepared as a result of the inspector's on-site observation.

§ 32-142 Public works

A. Drawings, plans, specifications, estimates and construction observation for public works of this state or a political subdivision of this state involving architecture, engineering, geology, landscape architecture or land surveying shall be prepared by or under the direct supervision of a registrant within the category involved.

B. Surveys or maps required in connection with public land surveying shall be made by or under the personal direction of a qualified registrant.

C. Drawings, plans, design specifications and construction observation of public works facilities of the state or a political subdivision of this state for the use or storage of hazardous materials shall be made by or under the direct supervision of a qualified registrant in the appropriate field.

§ 32-143 Exceptions

An architect, geologist, engineer or landscape architect registered under this chapter may engage in practice in another category regulated pursuant to this chapter only to the extent that the person is qualified and to the extent that the work may be necessary and incidental to the work of the registrant's profession on a specific project. This exception does not apply to public works projects.

§ 32-144 Exemptions and limitations; definition

A. Professions and occupations that are regulated by the board may be practiced without compliance with the requirements of this chapter by:

1. An officer or employee of the United States, practicing as such.

2. An employee of a registrant or of a person that is exempt from registration, if such employment does not involve direct responsibility for design, inspection or supervision.

3. A nonregistrant who designs, alters or adds to either of the following:

(a) A detached single-family dwelling.

(b) An individual unit in a multifamily dwelling if the walls that are designed, altered or added in the unit are not bearing walls, shear walls or firewalls, which shall be determined by a registrant following an evaluation of the walls to be designed, altered or added.

4. A nonregistrant who designs a one or two story building or structure in which the square footage of the floor area measured to the outside surface of the exterior walls does not exceed three thousand square feet, that is not intended for occupancy by more than twenty persons on a continuous basis and in which the maximum span of any structural member does not exceed twenty feet unless a greater span is achieved by the use of wood or steel roof or floor trusses or lintels approved by an engineer registered by the board.

5. A nonregistrant who designs additions or alterations to a one or two story building or structure subject to the limitations set forth in paragraph 4 of this subsection. A nonregistrant may exceed the maximum three thousand square foot limitation set forth in paragraph 4 of this subsection for:

(a) A onetime single addition not exceeding one thousand five hundred square feet as measured to the outside surface of the exterior walls and designed for the purpose of storage of chattels.

(b) An interior nonstructural alteration of an individual unit of a commercial space if that individual unit does not exceed three thousand square feet, except assembly occupancy as defined in the adopted building code.

6. A nonregistrant who designs a water or wastewater treatment plant, or extensions, additions, modifications or revisions, or extensions to water distribution or collection systems, if the total cost of such construction does not exceed $12,500.

7. A nonregistrant who designs buildings or structures to be erected on property owned or leased by the nonregistrant or by a person, firm or corporation, including a utility, telephone, mining or railroad company, that employs the nonregistrant on a full-time basis, if the buildings or structures are intended solely for the use of the owner or lessee of the property, are not ordinarily occupied by more than twenty people, are not for sale to, rental to or use by the public and conform to the building code adopted by the city, town or county in which the building is to be erected or altered.

8. A nonregistrant who provides horticultural consultations or prepares planting plans for plant installations.

B. A registrant who performs any of the activities described in subsection A, paragraphs 3 through 8 of this section is subject to the requirements of this chapter.

C. The requirements of this chapter do not apply to work done by any communications common carrier or its affiliates or any public service corporation or manufacturing industry or by full-time employees of any of them if such work is in connection with or incidental to the products, systems or nonengineering services of the communications common carrier or its affiliates or public service corporation or manufacturing industry and if the engineering service is not offered directly to the public.

D. An individual shall not perform home inspections unless the individual is certified as a home inspector pursuant to this chapter, except that this chapter does not prevent:

1. A person who is licensed, certified or registered pursuant to this chapter or another chapter in this title from acting within the scope of the person's license, certification or registration.

2. A person who is employed by a governmental entity from inspecting residential structures if the inspection is within official duties and responsibilities.

3. A person from performing a home inspection if the inspection will be used solely by a bank, savings and loan association or credit union to monitor progress on the construction of a residential structure, unless otherwise required by federal law or regulation.

4. A person who is employed as a property manager for a residential structure and whose official duties and responsibilities include inspecting the residential structure from performing a home inspection on the structure if the person does not receive separate compensation for the inspection work.

E. A person, including a person described in subsection D of this section, may not use any letterhead, advertisement, communication or other device to represent that the person is a home inspector unless the person is certified as a home inspector pursuant to this chapter.

F. A trained geologist may engage in a geological practice without being registered under this chapter. A trained geologist may not engage in a geological practice if any of the following applies:

1. The trained geologist has been convicted of a felony in this state or any other state.

2. The trained geologist has been registered or licensed in this state or any other state and has had the registration or license suspended or revoked by this state or the other state.

3. The trained geologist has been prohibited from engaging in a geological practice in this state or any other state due to any private, civil or professional complaint related to an ethical or technical violation while engaged in the practice of geology.

4. The trained geologist fails to disclose to a person employing or hiring the trained geologist:

(a) Any disciplinary action taken against the trained geologist in this state or any other state due to any private, civil or professional complaint that is related to an ethical or technical violation while engaged in the practice of geology.

(b) That the trained geologist is not a registered geologist pursuant to this title.

5. The trained geologist is required to be registered by another law in this state or by federal law.

6. State or federal law conditions the issuance of a license or permit, including permits issued under title 27, 37, 45 or 49, on the issuance of a report that is sealed by a registered geologist.

G. "Trained geologist" means a person who has both:

1. Earned a geology degree from an accredited educational institution.

2. Participated in geological work experience outside of an educational institution for at least four years.

§ 32-145 Violations; classification

Any person who commits any of the following acts is guilty of a class 2 misdemeanor:

1. Practices, offers to practice or by any implication holds himself out as qualified to practice any board regulated profession or occupation if the person is not registered or certified as provided by this chapter.

2. Advertises or displays any card, sign or other device that may indicate to the public that the person is certified or registered or is qualified to practice any board regulated profession or occupation if the person is not certified or registered as provided by this chapter.

3. Uses "certified", "professional certified", "professional", "PE", "registered", "registered professional" or "professional registered" in conjunction with any board regulated profession or occupation if the person is not certified or registered as provided by this chapter.

4. Uses a certification or certificate of registration of another, or uses an expired or revoked certification or certificate of registration.

5. Presents false evidence to the board with the intent to obtain a certification or a certificate of registration.

6. Otherwise violates any provision of this chapter.

§ 32-146 Malpractice claim review

A. On the filing of a complaint in any malpractice action the plaintiff's attorney shall forward a copy of the complaint to the board and a report containing the information required in subsection B.

B. The report required by subsection A shall contain the following information:

1. The name and address of each defendant.

2. The name and address of each plaintiff.

3. The names and addresses of each registrant providing services to the plaintiff.

4. A statement specifying the nature of the occurrence resulting in the malpractice action.

C. The report required by subsection A is not discoverable and not admissible as evidence.

D. On receipt of a report required by subsection A, the board shall initiate an investigation into the matter to determine if the registrant against whom the claim is filed is in violation of any provision of this chapter or any rule promulgated under this chapter.

§ 32-147 Board reports; immunity

Any person may report to the board any information the person may have which appears to show grounds for disciplinary action under the provisions of this chapter or rules of the board. A person who reports or provides information to the board in good faith is not subject to an action for civil damages as a result, and the person's name shall not be disclosed if confidentiality is requested by the person, unless the person's testimony is essential to the disciplinary proceedings conducted under this section.

§ 32-148 Refusal to obey a subpoena; contempt

A person who refuses to obey a subpoena issued by the board shall be certified by the board to the superior court in the county in which service was made for contempt proceedings.

§ 32-149 Transcript copies; cost

The board shall provide copies of the written transcript of a hearing conducted under the authority of this chapter and all evidence submitted to a person appealing a board decision at that person's expense and without charge to the court in which an appeal is taken.

§ 32-150 Failure to comply with board orders; penalty

Failure to comply with any final order of the board, including an order of censure or probation, is cause for suspension or revocation of a license.

§ 32-151 Certify; certification

The use of the word "certify" or "certification" by a person or firm that is registered or certified by the board is an expression of professional opinion regarding facts or findings that are the subject of the certification and does not constitute an express or implied warranty or guarantee.

§ 32-152 Record documents; definition

A. If a person or firm that is registered or certified by the board is required to provide record documents for improvements or grading, and the plans show changes during the construction process, the following apply:

1. If the registered or certified professional provided construction phase services on the project that include supervision of the construction of engineering structures, the plans shall be based on field observations of the registered or certified professional or the professional's agents and information received from the project owner, project contractors and public agencies.

2. If the registered or certified professional did not provide construction phase services on the project that include supervision of the construction of engineering structures, the plans shall be based on information received from the project owner, project contractors and public agencies, but need not be based on a field verification or investigation of the improvements or grades unless the registered or certified professional is engaged to provide the field verification services.

3. The registered or certified professional shall not be required to include a certificate or statement on record documents that is inconsistent with or varies from this section.

B. For the purposes of this section, "record documents" means plans that document the registered or certified professional's final plans and that include all changes made to the plans in the actual project construction. Record documents include as-constructed plans or as-built plans.

Chapter 5 Barbering and Cosmetology

Article 1 General Provisions

§ 32-501 Definitions

In this chapter, unless the context otherwise requires:

1. "Aesthetician" means a person who is licensed to practice aesthetics pursuant to this chapter.

2. "Aesthetics" means any one or a combination of the following practices if they are performed for cosmetic purposes:

(a) Massaging, cleansing, stimulating, manipulating, exercising, beautifying or applying oils, creams, antiseptics, clays, lotions or other preparations, either by hand or by mechanical or electrical appliances.

(b) Arching eyebrows or tinting eyebrows and eyelashes.

(c) Removing superfluous hair by means other than electrolysis or threading.

3. "Barber" means a person who is licensed to practice barbering pursuant to this chapter.

4. "Barbering" means any one or a combination of the following practices if they are performed on a person's head, face, neck or shoulders for cosmetic purposes:

(a) Cutting, clipping or trimming hair.

(b) Massaging, cleansing, stimulating, manipulating, exercising, beautifying or applying oils, creams, antiseptics, clays, lotions or other preparations, either by hand or by mechanical or electrical appliances.

(c) Styling, arranging, dressing, curling, waving, permanent waving, straightening, cleansing, singeing, bleaching, dyeing, tinting, coloring or similarly treating hair.

(d) Providing hair attachments, extensions, hairpieces and wigs when performed by a barber.

(e) Shaving or trimming a beard.

(f) Providing skin care, including facials, corrective treatments, blackhead and acne removal and masks and treatment creams.

(g) Removing unwanted hair by means other than electrolysis or threading.

5. "Board" means the barbering and cosmetology board.

6. "Cosmetic purposes" means for the purpose of beautifying, preserving or conferring comeliness, excluding therapeutic massage and manipulations.

7. "Cosmetologist" means a person who is licensed to practice cosmetology pursuant to this chapter.

8. "Cosmetology" means any one or a combination of the following practices if they are performed for cosmetic purposes:

(a) Massaging, cleansing, stimulating, manipulating, exercising, beautifying or applying oils, creams, antiseptics, clays, lotions or other preparations, either by hand or by mechanical or electrical appliances.

(b) Arching eyebrows or tinting eyebrows and eyelashes.

(c) Removing superfluous hair by means other than electrolysis or threading.

(d) Nail technology.

(e) Hairstyling.

9. "Electrical appliances" means devices that use electrical current and includes lasers and IPL devices as defined in section 32-516.

10. "Establishment" means any of the following:

(a) An establishment or shop that is operated for the purpose of engaging in the practice of barbering, cosmetology, aesthetics, nail technology, hairstyling or eyelash extensions or any combination of the practices listed in this subdivision.

(b) An establishment or shop together with a retrofitted motor vehicle that is used exclusively as a mobile facility for the purpose of engaging in the practice of barbering, cosmetology, aesthetics, nail technology or hairstyling or any combination of the practices listed in this subdivision and that is operated and dispatched through the establishment.

(c) A retrofitted motor vehicle that is exclusively used as a mobile facility for the purpose of engaging in the practice of barbering, cosmetology, aesthetics, nail technology or hairstyling or any combination of the practices listed in this subdivision and that is operated and dispatched from a business that has a physical street address on file with the board.

11. "Eyelash extensions":

(a) Means applying, removing and trimming threadlike natural or synthetic fibers to an eyelash.

(b) Includes cleansing the eye area and lashes.

(c) Does not include applying eyelash enhancements that are tattoos, color agents, straightening agents, permanent wave solutions or bleaching agents to the eyebrow or any other cosmetology service.

12. "Eyelash technician" means a person who is not licensed as a cosmetologist or aesthetician and who for compensation performs personal services limited to eyelash extensions.

13. "Hairstyling" means any of the following:

(a) Cutting, clipping or trimming hair.

(b) Styling, arranging, dressing, curling, waving, permanent waving, straightening, cleansing, singeing, bleaching, dyeing, tinting, coloring or similarly treating hair.

(c) Removing superfluous hair from the neck up by means other than electrolysis or threading.

14. "Hairstylist" means a person who is licensed to practice hairstyling pursuant to this chapter.

15. "Instructor" means a person who is licensed to teach barbering, cosmetology, aesthetics, nail technology or hairstyling, or any combination of these practices, pursuant to this chapter.

16. "Mentor" means a cosmetologist, aesthetician, barber, hairstylist or nail technician who is approved by the board to train a person in a department of economic security-approved apprenticeship program in cosmetology or barbering in an establishment that is licensed by the board.

17. "Nail technician" means a person who is licensed to practice nail technology pursuant to this chapter.

18. "Nail technology" means any of the following:

(a) Cutting, trimming, polishing, coloring, tinting, cleansing or otherwise treating a person's nails.

(b) Applying artificial nails.

(c) Massaging and cleaning a person's hands, arms, legs and feet.

19. "School" means an establishment that is operated for the purpose of teaching barbering, cosmetology, aesthetics, nail technology or hairstyling, or any combination of these practices.

20. "Threading" means a service that results in the removal of hair from its follicle from around the eyebrows and from other parts of the face with the use of a single strand of cotton thread and an over-the-counter astringent, if the service does not use chemicals of any kind, wax or any implements, instruments or tools to remove hair.

§ 32-502 Barbering and cosmetology board; members; appointment; qualifications; terms

A. The barbering and cosmetology board is established consisting of the following members who are appointed by the governor:

1. One cosmetologist who has actively practiced cosmetology in this state for at least three years immediately preceding appointment.

2. Two school owners who do not own the same school, one of whom owns a school that teaches cosmetology and one of whom owns a school that teaches barbering.

3. Five public members, preferably one of whom is an educator, who are not and have never been associated with the barbering, cosmetology or nail technology industry, licensed as a barber, cosmetologist or nail technician or involved in manufacturing barbering, cosmetology or nail technology products.

4. One barber who has actively practiced barbering in this state for at least three years.

B. The term of office for members is three years beginning and ending June 22.

C. The governor may remove board members for neglect of duty, malfeasance or misfeasance.

§ 32-503 Organization; meetings; personnel; compensation

A. The board shall annually elect a chairperson, vice chairperson and secretary-treasurer from among its membership.

B. The board shall hold at least one regular meeting monthly and may hold other meetings at times and places it designates.

C. Subject to title 41, chapter 4, article 4, the board may employ the following personnel as it deems necessary to carry out the purposes of this chapter and designate their duties:

1. An executive director.

2. Persons to provide investigative, professional and clerical assistance.

3. Consultants to assist the board in performing its duties.

4. Other personnel.

D. Members of the board are eligible to receive compensation as determined pursuant to section 38-611 for each day of actual service in the business of the board. The board shall compensate its executive director and other personnel as determined pursuant to section 38-611.

§ 32-504 Powers and duties

A. The board shall:

1. Adopt rules that are necessary and proper to administer this chapter, including:

(a) Sanitary and safety requirements for establishments and schools.

(b) Sanitary and safety standards for the practices of barbering, cosmetology, aesthetics, nail technology and hairstyling.

(c) Mobile facility requirements.

2. Administer and enforce this chapter and rules adopted pursuant to this chapter.

3. Either prepare, administer and grade practical and written examinations or contract with a national professional organization for aesthetics, barbering, cosmetology, hairstyling and nail technology that is selected by the board to prepare, administer and grade practical and written examinations.

4. Make and maintain a record of its acts and proceedings, including the issuance, denial, renewal, suspension or revocation of licenses and registrations and public reproofs of licensees and registrants.

5. Evidence its official acts by the signature of the chairperson or vice chairperson of the board or a representative designated by the board.

6. Keep records of the board open to public inspection at all reasonable times.

7. Prescribe minimum school curriculum requirements for barbers, cosmetologists, aestheticians, nail technicians, hairstylists and instructors.

8. Prescribe standards and requirements for the provision of establishment services through mobile facilities and in customer locations.

9. Approve an aesthetician, a barber, a cosmetologist, a hairstylist or a nail technician as a mentor based on the licensee's record of compliance with this chapter. The board may not condition the approval on the licensee's payment of an additional fee or completion of an additional requirement.

B. The board may:

1. Inspect the premises of any establishment or school during business hours.

2. Delegate authority to its executive director to issue licenses and registrations to applicants who meet the requirements of this chapter.

§ 32-505 Barbering and cosmetology fund

(L24, Ch. 222, sec. 3. Eff. until 7/1/28)

A. The barbering and cosmetology fund is established. Except as provided in subsection C of this section, before the end of each calendar month the board shall deposit, pursuant to sections 35-146 and 35-147, fifteen percent of all monies from whatever source that come into the possession of the board in the state general fund and deposit the remaining eighty-five percent in the barbering and cosmetology fund.

B. Except as provided in section 32-573, subsection G, monies deposited in the barbering and cosmetology fund are subject to section 35-143.01.

C. Monies from civil penalties received pursuant to section 32-571 shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

§ 32-505 (Version 2) Barbering and cosmetology fund

(L24, Ch. 222, sec. 4. Eff. 7/1/28)

A. The barbering and cosmetology fund is established. Except as provided in subsection C of this section, before the end of each calendar month the board shall deposit, pursuant to sections 35-146 and 35-147, ten percent of all monies from whatever source that come into the possession of the board in the state general fund and deposit the remaining ninety percent in the barbering and cosmetology fund.

B. Except as provided in section 32-573, subsection G, monies deposited in the barbering and cosmetology fund are subject to section 35-143.01.

C. Monies from civil penalties received pursuant to section 32-571 shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

§ 32-506 Nonapplicability of chapter

This chapter does not apply to the following persons while in the proper discharge of their professional duties:

1. Medical practitioners who are licensed pursuant to this title if the practices treat physical or mental ailments or disease.

2. Commissioned physicians and surgeons who are serving in the armed forces of the United States or other federal agencies.

3. Persons who are licensed pursuant to chapter 12 of this title.

4. Students who are attending schools licensed by the board while they are on school premises during school hours or off campus at a school-sponsored event.

5. Persons employed by theatrical groups who apply makeup, oils and cosmetics.

6. Persons who sell makeup, oils and cosmetics and who apply such products during the process of selling such products.

7. Shampoo assistants who shampoo hair under the direction of a barber, cosmetologist or hairstylist licensed pursuant to this chapter.

8. Services performed by and for persons who are in the custody of the state department of corrections.

9. Persons who apply makeup, oils and cosmetics to patients in a hospital, nursing home or residential care institution with the consent of the patient and the hospital, nursing home or residential care institution.

10. Persons who provide a service that results in tension on hair strands or roots by twisting, wrapping, weaving, extending, locking or braiding if the service does not include the application of dyes, reactive chemicals or other preparations to alter the color of the hair or to straighten, curl or alter the structure of the hair.

11. Persons who provide threading.

12. Persons who provide tanning services by means of airbrushing, tanning beds or spray tanning.

13. Persons who apply makeup, including eyelash enhancements. This paragraph does not apply if a person is engaging in the practice of aesthetics or cosmetology. A person who is exempt pursuant to this paragraph shall post a sign in a conspicuous location in the person's place of business notifying the public that the person's services are not regulated by the board.

14. Persons who dry, style, arrange, dress, curl, hot iron or shampoo and condition hair if the service does not include applying reactive chemicals to permanently straighten, curl or alter the structure of the hair and if the person takes and completes a class relating to sanitation, infection protection and law review that is provided by the board or its designee. This paragraph does not apply if a person is engaging in the practice of aesthetics or cosmetology. A person who is exempt pursuant to this paragraph shall post a sign in a conspicuous location in the person's place of business notifying the public that the person's services are not regulated by the board.

15. Persons who are participating in a department of economic security-approved apprenticeship program as described in section 32-510, 32-511, 32-512, 32-512.01 or 32-512.02 while working with a mentor in an establishment that is licensed by the board.

16. Persons who are licensed in another state and who are working in this state at a charitable event that benefits a nonprofit organization.

17. Persons who are licensed in another state, who are in this state for not more than two weeks and who provide services for persons who are attending an athletic, charitable, artistic or social event in this state.

18. Persons who are enrolled in a school that is licensed by the board and who shampoo, rinse and apply cream rinse, conditioners and reconstructors to hair, including hair that has been treated with color or bleach.

19. Persons who perform services without compensation in either:

(a) An emergency.

(b) A domestic administration.

20. Persons who perform barbering, cosmetology, hairstyling or nail technology services in a funeral establishment as defined in section 32-1301.

§ 32-507 Fees

A. The board shall establish and collect fees not to exceed the following:

1. Application for initial personal license, a onetime fee of $100.

2. Application for personal reciprocity or universal license, a onetime fee of $200.

3. Application for establishment license, including change of ownership, $250.

4. Application for school license and initial inspection fee, including change of ownership and change of location, $1,000.

5. Application for certification of licensure or hours, $30.

6. Personal license renewal, $100 to be paid once every two years pursuant to section 32-517 or 32-535.

7. Personal license delinquent renewal, $150.

8. Establishment license after a change of location, $150.

9. Establishment license renewal, $100.

10. Establishment license delinquent renewal, $150.

11. School license renewal, $500.

12. School license delinquent renewal, $600.

13. Delinquent penalties for each year or portion of a year for which the license was inactive.

14. Computer printouts of names of licensees, up to $.10 per name.

15. Duplicate license, $30.

16. Dishonored checks, $20.

17. Copying charges, $1 per page. For audiotapes, videotapes, computer discs or other mediums used for recording sounds, images or information, $15 per tape, disc or other medium.

18. Board-administered educational classes, $100.

19. Service charges for persons who pay with alternative payment methods, including credit cards, charge cards, debit cards and electronic transfers, not to exceed the cost of the alternative payment method.

20. Eyelash technician registration, an amount to be determined by the board.

21. Eyelash technician registration renewal, an amount to be determined by the board.

22. Eyelash technician registration delinquent renewal, an amount to be determined by the board.

B. The board may charge additional fees for:

1. Documents and publications provided by the board.

2. Services that the board deems appropriate to carry out its intent and purpose. These additional fees shall not exceed the costs of rendering the services.

Article 2 Barbering and Cosmetology Professionals

§ 32-510 Aestheticians; applications; qualifications

A person is entitled to receive an aesthetician's license if the person:

1. Submits to the board an application for an aesthetician's license on a form supplied by the board.

2. Does either of the following:

(a) Completes and receives appropriate credits for at least two years of high school education or its equivalent as prescribed by the board in its rules and submits to the board satisfactory evidence that the person is at least sixteen years of age.

(b) Submits to the board satisfactory evidence that the person is at least eighteen years of age.

3. Submits to the board satisfactory evidence of any of the following:

(a) That the person is a graduate of an aesthetician school in another state or country that has substantially the same requirements as this state for schools licensed by the board.

(b) That the person is a graduate of an aesthetician course consisting of at least six hundred hours of training in a school licensed by the board.

(c) That the person completed a United States department of labor-approved or a department of economic security-approved apprenticeship program in aesthetics that includes at least two hundred hours of infection protection and law review instruction. The person shall complete the instruction prescribed by this subdivision through either:

(i) A school that is licensed by the board or a school or program in another state that has, in the board's opinion, licensure requirements that are substantially equivalent to the requirements of this state.

(ii) A department of economic security-approved apprenticeship program.

4. Passes the examination for an aesthetician's license.

5. Pays the prescribed fees for an aesthetician's license.

§ 32-511 Cosmetologists; applications; qualifications

A person is entitled to receive a cosmetologist license if the person does all of the following:

1. Submits to the board an application for a cosmetologist license on a form supplied by the board.

2. Does either of the following:

(a) Completes and receives appropriate credits for at least two years of high school education or its equivalent as prescribed by the board in its rules and submits satisfactory evidence that the person is at least sixteen years of age.

(b) Submits to the board satisfactory evidence that the person is at least eighteen years of age.

3. Submits to the board satisfactory evidence of any of the following:

(a) That the person is a graduate of a cosmetology course consisting of at least one thousand five hundred hours of training in a school licensed by the board.

(b) That the person is a graduate of a cosmetology school in another state or country that had at the time of the person's graduation substantially the same requirements as this state for schools licensed by the board.

(c) That the person completed a United States department of labor-approved or a department of economic security-approved apprenticeship program in cosmetology that includes at least two hundred fifty hours of infection protection and law review instruction. The person shall complete the instruction prescribed by this subdivision through either:

(i) A school that is licensed pursuant to this chapter or a school or program in another state that has, in the board's opinion, licensure requirements that are substantially equivalent to the requirements of this state.

(ii) A department of economic security-approved apprenticeship program.

4. Passes the examination for a cosmetologist license.

5. Pays the prescribed fees.

§ 32-512 Nail technicians; applications; qualifications

A person is entitled to receive a license to practice nail technology if the person does all of the following:

1. Submits to the board an application for a nail technician license on a form supplied by the board.

2. Does either of the following:

(a) Completes and receives appropriate credits for at least two years of high school education or its equivalent as prescribed by the board in its rules and submits satisfactory evidence that the person is at least sixteen years of age.

(b) Submits to the board satisfactory evidence that the person is at least eighteen years of age.

3. Submits to the board satisfactory evidence of any of the following:

(a) That the person graduated from a nail technology school in another state or country that had at the time of the person's graduation substantially the same requirements as this state for schools licensed by the board.

(b) That the person completed a nail technician course consisting of at least six hundred hours of training in a school licensed by the board.

(c) That the person completed a United States department of labor-approved or a department of economic security-approved apprenticeship program in nail technology that includes at least one hundred fifty hours of infection protection and law review instruction. The person shall complete the instruction prescribed by this subdivision through either:

(i) A school that is licensed by the board or a school or program in another state that has, in the board's opinion, licensure requirements that are substantially equivalent to the requirements of this state.

(ii) A department of economic security-approved apprenticeship program.

4. Pays the prescribed fees for a nail technician license.

5. Passes the examination for a nail technician license.

§ 32-512.01 Hairstylists; applications; qualifications

A person is entitled to receive a license to practice hairstyling if the person does all of the following:

1. Submits to the board an application for a hairstylist license on a form supplied by the board.

2. Either:

(a) Completes and receives appropriate credits for at least two years of high school education or its equivalent as prescribed by the board in its rules and submits satisfactory evidence that the person is at least sixteen years of age.

(b) Submits to the board satisfactory evidence that the person is at least eighteen years of age.

3. Submits to the board satisfactory evidence that the person meets any of the following:

(a) Graduated from a hairstyling school in another state or country that had at the time of the person's graduation substantially the same requirements as this state for schools licensed by the board.

(b) Completed a hairstylist course consisting of at least one thousand hours of training in a school licensed by the board.

(c) Completed a United States department of labor-approved or a department of economic security-approved apprenticeship program in hairstyling that includes at least two hundred hours of infection protection and law review instruction. The person shall complete the instruction prescribed by this subdivision through either:

(i) A school that is licensed by the board or a school or program in another state that has, in the board's opinion, licensure requirements that are substantially equivalent to the requirements of this state.

(ii) A department of economic security-approved apprenticeship program.

4. Pays the prescribed fees for a hairstylist license.

5. Passes the examination for a hairstylist license.

§ 32-512.02 Barbers; applications; qualifications

A. An applicant for a barber license shall file with the board a written application on a form prescribed by the board.

B. An applicant for a barber license shall meet all of the following:

1. Do either of the following:

(a) Complete and receive appropriate credits for at least two years of high school education or the equivalent as prescribed by the board in its rules and submit satisfactory evidence that the applicant is at least sixteen years of age.

(b) Submit to the board satisfactory evidence that the applicant is at least eighteen years of age.

2. Submit to the board satisfactory evidence that the applicant meets any of the following:

(a) Is a graduate of a barbering course consisting of at least one thousand two hundred hours of training in a school licensed by the board.

(b) Is a graduate of a barbering school in another state or country that at the time of the applicant's graduation had substantially the same requirements as this state for schools that are licensed by the board.

(c) Completed a United States department of labor-approved or a department of economic security-approved apprenticeship program in barbering that includes at least two hundred fifty hours of infection protection and law review instruction. The applicant shall complete the instruction prescribed by this subdivision through either:

(i) A school that is licensed pursuant to this chapter or a school or program in another state that has, in the board's opinion, licensure requirements that are substantially equivalent to the requirements of this state.

(ii) A department of economic security-approved apprenticeship program.

3. Pass the examinations for a barber license.

4. Pay the fees prescribed in section 32-507.

C. Notwithstanding subsection B, paragraph 2 of this section, an applicant for a barber license who holds a cosmetologist license or a hairstylist license issued pursuant to this chapter shall complete a two hundred hour course consisting of barbering techniques in a school licensed by the board.

§ 32-513 Reciprocity

Notwithstanding sections 32-510, 32-511, 32-512, 32-512.01 and 32-512.02, a person is entitled to receive a barber, cosmetologist, aesthetician, nail technician or hairstylist license if the person does all of the following:

1. Submits to the board an application for a barber, cosmetologist, aesthetician, nail technician or hairstylist license on a form supplied by the board.

2. Submits to the board satisfactory evidence that the person is licensed in another state or country.

3. Takes and completes a class relating to infection protection and law review that is provided by the board or its designee. The board shall determine the amount of the fees for the class. The applicant shall pay the fees directly to the board or its designee.

4. Pays the prescribed reciprocity license fees.

§ 32-514 Examinations

A. The board or a national professional organization for barbering or cosmetology, or both, that is selected by the board shall administer written and practical examinations for a barber, cosmetologist, aesthetician, nail technician, hairstylist or instructor license. The examinations shall test for requisite knowledge and skills in the technical application of barbering and cosmetology services. An applicant may take an examination before the applicant has completed the required hours of course instruction prescribed by this article, but the applicant must complete the required hours of course instruction before licensure.

B. The board or a national professional organization for barbering or cosmetology, or both, that is selected by the board shall inform each applicant of the examination results.

C. The board shall make an accurate record of each examination.

§ 32-515 Reexaminations

A. An applicant who fails an examination for a license pursuant to this article is entitled to a reexamination.

B. If an applicant fails either part of the examination, the applicant shall only retake the part of the examination that the applicant failed.

C. If one year or more elapses between an applicant's initial examination and reexamination, the applicant shall take both the written and practical parts of the examination.

D. An applicant desiring to be reexamined shall:

1. Apply to the board, if the board is administering the examination, on forms it prescribes and furnishes or to a national professional organization selected by the board to administer the examination.

2. Pay the prescribed examination fee.

§ 32-516 Aestheticians; cosmetologists; cosmetic laser and IPL device use; certification; definitions

A. An aesthetician or a cosmetologist who wishes to perform cosmetic laser procedures and procedures using IPL devices must:

1. Apply for and receive a certificate from the department.

2. Comply with the requirements of this section and department rules.

B. An aesthetician or a cosmetologist who has been certified as a laser technician by the department may use a laser or IPL device.

C. An aesthetician or a cosmetologist who used laser and IPL devices before November 24, 2009 may continue to do so if the aesthetician or cosmetologist received a certificate pursuant to this section before October 1, 2010.

D. For the purposes of this section:

1. "Department" means the department of health services.

2. "IPL device" means an intense pulse light class II surgical device certified in accordance with the standards of the department for cosmetic procedures.

3. "Laser" means any device that can produce or amplify electromagnetic radiation with wavelengths in the range of one hundred eighty nanometers to one millimeter primarily by the process of controlled stimulated emission and certified in accordance with the standards for the department for cosmetic procedures.

4. "Laser technician" means a person who is or has been certified by the department pursuant to its rules and chapter 32, article 2 of this title.

§ 32-517 License renewal

A. Except as provided in section 32-4301, a barber, a cosmetologist, an aesthetician, a nail technician or a hairstylist shall renew the person's license on or before the person's birthday once every two years.

B. A barber, a cosmetologist, an aesthetician, a nail technician or a hairstylist shall pay the prescribed renewal fee and comply with requirements prescribed in this chapter to renew the person's license.

C. A barber, a cosmetologist, an aesthetician, a nail technician or a hairstylist who fails to renew the person's license on or before the person's birthday shall also pay the prescribed delinquent renewal penalty in order to renew the license.

§ 32-518 Inactive licenses; reactivation; suspension

A. A license that is not renewed pursuant to section 32-517 automatically reverts to inactive status.

B. A licensee may reactivate an inactive license:

1. If a license has been inactive for less than one year, by paying the prescribed delinquent renewal penalty.

2. If a license has been inactive for one year or more but less than five years, by paying the prescribed delinquent renewal penalty and submitting proof of satisfying educational requirements prescribed by the board in its rules.

C. A license that has been inactive for five years is automatically suspended.

D. A licensee shall not practice under an inactive license.

§ 32-519 Eyelash technicians; registration; renewal; register; exception

A. Except as provided in subsection D of this section, an eyelash technician must be registered by the board. A person is entitled to receive an eyelash technician registration if the person does all of the following:

1. Submits to the board an application for an eyelash technician registration on a form supplied by the board.

2. Either:

(a) Completes and receives appropriate credits for at least two years of high school education or its equivalent as prescribed by the board in its rules and submits satisfactory evidence that the person is at least sixteen years of age.

(b) Submits to the board satisfactory evidence that the person is at least eighteen years of age.

3. Submits to the board satisfactory evidence that the person successfully completed a board-approved training program. The board shall require not more than thirty hours of training. A training program is not required to be licensed as a school by the board to be approved. The board-approved training program shall provide a provisional registration to the person verifying the successful completion of the training. Any person who satisfactorily demonstrates training received before October 30, 2023 is eligible for registration.

4. Pays the prescribed fees.

B. Except as provided in section 32-4301, an eyelash technician shall renew the person's registration on or before the person's birthday once every two years. An eyelash technician shall submit to the board an application for renewal accompanied by the prescribed renewal fee to renew the person's registration. An eyelash technician who fails to renew the person's registration on or before the person's birthday shall also pay the prescribed delinquent renewal penalty to renew the registration.

C. The board shall maintain a current register of registered eyelash technicians who are in good standing with the board.

D. An aesthetician or cosmetologist may perform eyelash extensions without registering as an eyelash technician pursuant to this section.

Article 3 Instructors

§ 32-531 Instructors; applications; qualifications; denial; hearing

A. A person is entitled to receive a license to teach barbering, cosmetology, aesthetics, nail technology or hairstyling in a school if the person meets all of the following:

1. Submits to the board an application for an instructor license on a form prescribed by the board.

2. Either:

(a) Holds a diploma from a high school or its equivalent as prescribed by the board in its rules and submits to the board satisfactory evidence that the person is at least sixteen years of age.

(b) Submits to the board satisfactory evidence that the person is at least eighteen years of age.

3. Is a licensed barber, cosmetologist, aesthetician, nail technician or hairstylist, is applying for an instructor license to teach a subject in which the person is licensed, has practiced for at least one year in the profession for which the person is applying for an instructor license and has received the following hours of instructor training:

(a) For a cosmetologist instructor, three hundred fifty hours.

(b) For an aesthetics instructor, three hundred fifty hours.

(c) For a nail technician instructor, three hundred fifty hours.

(d) For a hairstylist instructor, three hundred fifty hours.

(e) For a barbering instructor, three hundred fifty hours.

4. Passes a written examination and a practical examination for an instructor license.

5. Pays the prescribed fees.

6. Completes an infection prevention, sanitation and law review class provided by the board.

B. An applicant may appeal the board's denial of an instructor license by requesting a hearing. The hearing shall be before the board at its next regular meeting that follows the board's receipt of the request. At the hearing the burden of proof is on the applicant to demonstrate that the alleged deficiencies that are the basis of the denial do not exist.

§ 32-532 Instructors; license reciprocity

Notwithstanding section 32-531, a person is entitled to receive a license to teach barbering, cosmetology, aesthetics, nail technology or hairstyling in a school if the person submits to the board an application for an instructor license on a form prescribed by the board, pays the prescribed fees and meets one of the following:

1. Is a current licensed barbering instructor, cosmetology instructor, aesthetics instructor, nail technology instructor or hairstyling instructor in another state or country.

2. Is a current licensed barber, cosmetologist, aesthetician, nail technician or hairstylist in another state or country and has at least one year of instructor experience in the other state or country in barbering, cosmetology, aesthetics, nail technology or hairstyling, or any combination of these practices.

3. Meets all of the following:

(a) Either:

(i) Submits to the board satisfactory evidence that the person is at least eighteen years of age.

(ii) Holds a diploma from a high school or its equivalent as prescribed by the board in its rules and submits to the board satisfactory evidence that the person is at least sixteen years of age.

(b) Is a licensed barber, cosmetologist, aesthetician, nail technician or hairstylist in another state or country.

(c) Completes instructor training in another state or country that has instructor education requirements that are at least substantially equivalent to those of this state.

(d) Passes a written examination and a practical examination for an instructor license.

(e) Has five years of licensed industry experience within the ten years preceding application.

(f) Meets requirements as prescribed by the board in its rules.

(g) Completes an infection prevention, sanitation and law review class provided by the board.

§ 32-533 Instructor examinations; reexaminations

A. An examination for an instructor license shall be written and practical.

B. The board shall inform each applicant of the applicant's examination results in writing.

C. The board shall make an accurate record of each examination.

D. An applicant who fails any part of the examination twice shall attend a school licensed pursuant to this chapter for two hundred fifty hours of instructor training.

E. An applicant desiring to be reexamined shall apply to the board on forms it prescribes and furnishes and pay the prescribed examination fee.

§ 32-535 Instructor license renewal

A. Except as provided in section 32-4301, an instructor shall renew the instructor's license on or before the instructor's birth date once every two years.

B. An instructor shall submit an application for renewal accompanied by the prescribed renewal fee in order to renew the instructor's license.

C. An instructor who fails to renew the instructor's license on or before the instructor's birth date as prescribed by this section shall also pay the prescribed delinquent renewal penalty in order to renew the license.

§ 32-536 Instructor practice; instruction

A. An instructor may practice in the category of practice in which the instructor is licensed to practice in an establishment that is licensed pursuant to this chapter.

B. An instructor shall teach only in the area in which the instructor is licensed by the board to teach.

§ 32-537 Instructors; inactive licenses; reactivation; suspension

A. An instructor license that is not renewed pursuant to section 32-535 automatically reverts to inactive status.

B. A licensee may reactivate an inactive license:

1. If a license has been inactive for less than one year, by paying the prescribed delinquent renewal penalty.

2. If a license has been inactive for one year or more but less than five years, by paying the prescribed delinquent renewal penalty and submitting proof of satisfying educational requirements prescribed by the board in its rules.

C. A license that has been inactive for five years is automatically suspended.

D. A licensee shall not practice under an inactive license.

Article 4 Establishments

§ 32-541 Establishment licenses; requirements

A. A person is entitled to receive a license to operate an establishment if the person:

1. Submits to the board an application for an establishment license on a form supplied by the board.

2. Pays the prescribed fee.

B. The safety and sanitary requirements specified by the board in its rules shall be requirements while an establishment is operating.

C. Each establishment shall have an individual designated as the manager of the establishment.

§ 32-542 Establishment inspections

The board shall inspect establishments on a regular basis as it deems necessary.

§ 32-543 Required display; licenses; inspection sheet

Each establishment shall display the following in a conspicuous location that is readily observable by any patron:

1. The current establishment license.

2. The current license for each barber, cosmetologist, aesthetician, nail technician or hairstylist who is practicing in the establishment.

3. The current registration for each eyelash technician who is practicing in the establishment.

4. The latest inspection sheet for the establishment.

§ 32-544 Establishment license renewal

A. Except as provided in section 32-4301, an establishment license is renewable each year on or before the anniversary date of the first license by meeting all the requirements for an establishment license and paying the prescribed renewal fee.

B. An establishment owner who fails to renew the owner's establishment license each year on or before the anniversary date of the license shall apply pursuant to section 32-541 and pay the prescribed fee and delinquent renewal penalty.

§ 32-545 Change of ownership or location; change of trade name; board notification

A. An establishment shall not change from the name of one licensee to another or from one location to another or change its trade name without filing a new application and paying the prescribed fee.

B. Within ten days after any change of ownership of the establishment or change in the establishment's location, the establishment owner shall notify the board in writing, file a new application and pay the prescribed fee.

Article 5 Schools

§ 32-551 School licenses; applications; barbering school requirements; supervision; students

A. A person is entitled to a license to operate a school if:

1. The person pays the prescribed fee.

2. The person furnishes a surety bond in the amount of $10,000 approved by the board and executed by a corporate bonding company authorized to do business in this state. The bond shall be for the benefit of and subject to the claims of the state for failure to comply with the requirements of this chapter and any student who fails to receive the full course of instruction required under this chapter.

3. The person submits to the board under oath an application for a school license on a form supplied by the board and other documentation required by the board in its rules.

4. The proposed school passes an inspection by the board before it opens.

B. A course of instruction in a licensed school that teaches barbering shall consist of at least one thousand two hundred hours of instruction. The course of instruction shall include:

1. At least two hundred fifty hours devoted to the study of the fundamentals of barbering, hygiene, bacteriology, histology of the hair, skin, muscles and nerves, structure of the head, face and neck, elementary chemistry relating to sterilization and antiseptics and diseases of the skin, hair and glands.

2. At least nine hundred fifty hours devoted to the practice and study of massaging and manipulating muscles of the scalp, face and neck, haircutting, shaving and chemical work relating to permanent waves and hair straightening, coloring and bleaching.

C. A licensed school shall be operated under the general supervision of a licensed instructor.

D. Students may not teach other students at a licensed school.

E. A school that holds a school license in barbering and a school license in cosmetology may offer courses on both cosmetology and barbering if an instructor licensed as a cosmetologist teaches the cosmetology courses and an instructor licensed as a barber teaches the barbering courses.

§ 32-552 Change of ownership or location; change of trade name

A. A school shall not change from the name of one licensee to another or from one location to another or change its trade name without filing a new application and paying the prescribed fee.

B. A school owner shall notify the board in writing within ten days after any change of ownership of the school or change in the school's location or trade name, submit a new license application for the school and pay the prescribed fee.

§ 32-553 Instruction staff

A. Instructors shall not apply their time to private practice with or without compensation in a school.

B. Students shall be under the constant supervision of an instructor.

§ 32-554 Required display

Schools shall display the following in a conspicuous location:

1. The current school license.

2. The current licenses of instructors teaching in the school.

3. The latest inspection sheet.

§ 32-555 Equipment

A school shall contain sufficient equipment as prescribed by the board in its rules.

§ 32-556 Separation of schools from other businesses

A school of any type may include programs related to a subject that the board licenses or registers but may not include an establishment. A school may offer for sale related products and articles.

§ 32-557 Students; services for the public; notice; salary prohibited; price list

A. Students of a licensed school may render services to the public only under the direct supervision of a licensed instructor.

B. The following notice shall be posted in a conspicuous place within the school in letters large enough to be read across the length of the room: "School of (type of board-licensed school) — work done exclusively by students under the direct supervision of a licensed instructor."

C. A student in a school shall not receive a salary or commission from the school for any barbering, cosmetology, aesthetics, nail technology or hairstyling services while enrolled in the school as a student. A student who is enrolled in a school for the purpose of becoming an instructor may be a paid employee of the school.

D. A school shall post a price list for services rendered to the public that is large enough to be easily read from a distance of ten feet.

§ 32-558 Student-school contracts

A private school is required to execute a contract between itself and a student in duplicate. The form of the contract shall be approved by the board. A contract between a school and a student shall bear the signature of a school official and the student or parent or guardian if the student is under eighteen years of age. A fully executed copy of the contract shall be given to the student and the school shall keep the original copy.

§ 32-559 School catalogs

A. A private school shall submit a copy of its official catalog to the board for board approval.

B. A private school catalog shall contain the following:

1. Name and address of the school.

2. Date of publication.

3. Admission requirements and procedures used by the school.

4. Number of hours of training required for licensure.

5. A brief outline of the curriculum offered by the school.

6. A description of the school's general physical facilities and equipment.

7. Policies relating to tardiness, absences, make-up work, conduct, termination and other rules of the school.

8. The grading system, including a definition of credit units if any.

9. The type of document awarded on graduation from the school.

§ 32-560 Students; transfer; documentation

A student who desires to transfer from one school to another may apply to another school of the student's choice. The transferring school shall provide the student with a completion form documenting the hours and courses that the student has successfully completed. The form shall include the school's name, address and license number and the student's dates of attendance.

§ 32-561 Student records

A school shall keep records as prescribed by the board in its rules on file for each student enrolled or reenrolled in a school for a regular course, postgraduate course or additional hours.

§ 32-562 School inspections

The board shall inspect schools on a regular basis as it deems necessary.

§ 32-563 School closings

A. Within five days after a school closes it shall notify the board by certified mail of the closure.

B. Within ten days after a school closes it shall forward all student records to the board.

§ 32-564 School license renewal

A. Except as provided in section 32-4301, school licenses are renewable on or before June 30 of every year by meeting all the requirements for a school license and paying the prescribed renewal fee.

B. A school owner who fails to renew his school license by June 30 of every year shall apply pursuant to section 32-551 and pay the prescribed fee and delinquent renewal penalty.

§ 32-565 Schools; postsecondary education institutions

A school must be recognized as a postsecondary educational institution if both of the following apply:

1. The school admits as regular students only individuals who have earned a recognized high school diploma or the equivalent of a recognized high school diploma or who are beyond the age of compulsory education as provided by section 15-802.

2. The school is licensed by name by the board under this chapter to offer one or more training programs beyond the secondary school level.

Article 6 Regulation

§ 32-571 Disciplinary action

The board may take any one or a combination of the following disciplinary actions:

1. Revoke a license or registration.

2. Suspend a license or registration.

3. Impose a civil penalty in an amount of not more than $2,000.

4. Impose probation requirements best adapted to protect the public safety, health and welfare, including requirements for restitution payments to patrons.

5. Publicly reprove a licensee or registrant.

6. Issue a letter of concern.

§ 32-572 Grounds for disciplinary action or refusal to issue or renew license or registration; definition

A. The board may take disciplinary action or refuse to issue or renew a license or registration for any of the following causes:

1. Continuing to perform barbering, cosmetology, aesthetics, nail technology, hairstyling or eyelash extension services if the person knowingly has an infectious or communicable disease.

2. Being convicted of a crime.

3. Committing an act involving dishonesty, fraud or deceit with the intent to substantially benefit oneself or another or substantially injure another.

4. Committing malpractice or incompetency.

5. Knowingly advertising by means of false, misleading, deceptive or fraudulent statements through communication media.

6. Violating this chapter or any rule adopted pursuant to this chapter.

7. Making oral or written false statements to the board.

8. Repeatedly failing to correct infractions of safety and sanitary requirements prescribed by the board in its rules.

9. Failing to comply with an order of the board.

B. A licensee's or registrant's conviction of a crime or act is not a cause for the board to refuse to issue or renew a license or registration unless the crime or act is substantially related to the qualifications, functions or duties of the license or registration for which application is made.

C. The expiration, cancellation, suspension or revocation of a license or registration or a licensee's or registrant's voluntary surrender of a license or registration does not deprive the board of jurisdiction to do any of the following:

1. Proceed with an investigation of a licensee or registrant.

2. Proceed with an action or disciplinary proceeding against a licensee or registrant.

3. Suspend or revoke a license or registration.

4. Deny the renewal or right of renewal of a license or registration.

D. For the purposes of this section, "conviction" means a plea or verdict of guilty or a conviction following a plea of no contest.

§ 32-573 Procedure for disciplinary action; appeal

A. The board on its own motion may investigate any information that appears to show the existence of any of the causes set forth in section 32-572. The board shall investigate the report of any person that appears to show the existence of any of the causes set forth in section 32-572. A person who reports pursuant to this section and who provides the information in good faith is not subject to liability for civil damages as a result.

B. If, after completing its investigation, the board finds that the evidence is not of sufficient seriousness to merit direct action against a license or registration, it may take either of the following actions:

1. Dismiss if, in the opinion of the board, the evidence is without merit.

2. File a letter of concern if, in the opinion of the board, while there is insufficient evidence to support direct action against the license or registration there is sufficient evidence for the board to notify the licensee or registrant that continuation of the activities that led to the information or report being made to the board may result in action against the licensee's license or registrant's registration.

C. If, in the opinion of the board, it appears the information or report is or may be true, the board shall request an informal interview with the licensee or registrant concerned. The interview shall be requested by the board in writing, stating the reasons for the interview and setting a date at least ten days after the date of the notice for conducting the interview.

D. If, after an informal interview, the board finds that the evidence warrants suspension or revocation of a license or registration issued pursuant to this chapter, imposition of a civil penalty or public reproof or if the licensee or registrant under investigation refuses to attend the informal interview, a complaint shall be issued and formal proceedings shall be initiated. All proceedings pursuant to this subsection shall be conducted in accordance with title 41, chapter 6, article 10.

E. A licensee or registrant who has been notified pursuant to subsection D of this section of charges pending against the licensee or registrant shall file with the board an answer in writing to the charges not more than thirty days after the licensee or registrant receives the complaint. If the licensee or registrant fails to answer in writing within this time, it is deemed an admission by the licensee or registrant of the acts charged in the complaint and the board may take disciplinary action allowed by this chapter without a hearing.

F. If the board finds that the evidence is not of sufficient seriousness to merit suspension or revocation of a license or registration issued pursuant to this chapter, imposition of a civil penalty or public reproof, the board may take the following actions:

1. Dismiss if, in the opinion of the board, the evidence is without merit.

2. File a letter of concern if, in the opinion of the board, while there is insufficient evidence to support direct action against the license or registration there is sufficient evidence for the board to notify the licensee or registrant that continuation of the activities which led to the information or report being made to the board may result in action against the licensee's license or registrant's registration.

3. Impose probation requirements.

G. If a licensee or registrant violates this chapter or a rule adopted pursuant to this chapter, the board may assess the licensee or registrant with the board's reasonable costs and expenses, including attorney fees, incurred in conducting the investigation and administrative hearing. All monies collected pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in a separate account in the barbering and cosmetology fund established by section 32-505. The board may only use these monies to defray its expenses in connection with investigation related training and education, disciplinary investigations and all costs related to administrative hearings. Notwithstanding section 35-143.01 the separate account monies may be spent without legislative appropriation.

H. Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-574 Unlawful acts; violations; classification

A. A person shall not:

1. Perform or attempt to perform barbering, cosmetology, aesthetics, nail technology, hairstyling or personal services related to eyelash extensions without a license or registration in that category issued pursuant to this chapter, or practice in a category in which the person does not hold a license or registration.

2. Display a sign or in any way advertise or hold oneself out as a barber, cosmetologist, aesthetician, nail technician, hairstylist or eyelash technician or as being engaged in the practice or business of barbering, cosmetology, aesthetics, nail technology, hairstyling or eyelash extensions without being licensed or registered pursuant to this chapter.

3. Knowingly make a false statement on an application for a license or registration pursuant to this chapter.

4. Allow an employee or another person under the person's supervision or control to perform barbering, cosmetology, aesthetics, nail technology, hairstyling or personal services related to eyelash extensions without a license or registration issued pursuant to this chapter.

5. Practice or attempt to practice barbering, cosmetology, aesthetics, nail technology, hairstyling or personal services related to eyelash extensions in any place other than in an establishment licensed by the board unless the person is requested by a customer to go to a place other than an establishment licensed pursuant to this chapter and is sent to the customer from the establishment, except that a person who is licensed or registered pursuant to this chapter may practice, without the establishment's request, barbering, cosmetology, aesthetics, nail technology, hairstyling or personal services related to eyelash extensions in a health care facility, hospital, residential care institution, nursing home or residence of a person requiring home care because of an illness, infirmity or disability.

6. Obtain or attempt to obtain a license or registration by the use of monies other than the prescribed fees or any other thing of value or by fraudulent misrepresentation.

7. Provide any service to a person having a visible disease, pediculosis or open sores suggesting a communicable disease until the person furnishes a statement signed by a physician who is licensed pursuant to chapter 13 or 17 of this title stating that the disease or condition is not in an infectious, contagious or communicable stage.

8. Operate a school without being licensed by the board.

9. Operate an establishment without being licensed by the board and without having an individual designated as the manager of the establishment.

10. Violate this chapter or any rule adopted pursuant to this chapter.

11. Ignore or fail to comply with a board subpoena.

12. Use the title of "aesthetician", "barber", "cosmetologist", "nail technician", "hairstylist" or "eyelash technician" or any other title or term likely to be confused with "aesthetician", "barber", "cosmetologist", "nail technician", "hairstylist" or "eyelash technician" in any advertisement, statement or publication unless that person is licensed or registered by the board.

13. Teach barbering, cosmetology, aesthetics, nail technology or hairstyling in this state unless the person is licensed as an instructor pursuant to article 3 of this chapter.

B. An instructor shall not render barbering, cosmetology, aesthetics, nail technology or hairstyling services in a school unless the services are directly incidental to instructing students.

C. A school shall post a conspicuous notice to the public pursuant to section 32-557 that all services are performed by students under the direct supervision of a licensed instructor.

D. A person who violates this section is guilty of a class 1 misdemeanor.

§ 32-575 Injunctions

The board, the attorney general, a county attorney or any other person may apply to the superior court in the county in which acts or practices of any person which constitute a violation of this chapter or the rules adopted pursuant to this chapter are alleged to have occurred for an order enjoining those acts or practices.

§ 32-576 Confidentiality

A. Examination materials, records of examination grading and performance and transcripts of educational institutions are confidential and are not subject to inspection pursuant to title 39, chapter 1, article 2.

B. All investigation files are confidential and are not subject to inspection pursuant to title 39, chapter 1, article 2 until the matter is final. The licensee shall be informed of the investigation. The public may obtain information that discloses that an investigation is being conducted and the general nature of the investigation.

Article 7 Cosmetology Licensure Compact

§ 32-581 Definitions

In this compact, unless the context otherwise requires:

1. "Active military member" means any person with full-time duty status in the armed forces of the United States, including members of the national guard and reserve.

2. "Adverse action" means any administrative, civil, equitable or criminal action allowed by a member state's laws that is imposed by a state licensing authority or other regulatory body against a cosmetologist, including actions against an individual's license or authorization to practice such as revocation, suspension, probation, monitoring of the licensee, limitation of the licensee's practice or any other encumbrance on a license affecting an individual's ability to participate in the cosmetology industry, including the issuance of a cease and desist order.

3. "Alternative program" means a nondisciplinary monitoring or prosecutorial diversion program approved by a member state's state licensing authority.

4. "Authorization to practice" means a legal authorization associated with a multistate license allowing the practice of cosmetology in that remote state that is subject to the enforcement jurisdiction of the state licensing authority in that remote state.

5. "Background check" means the submission of information for an applicant for the purpose of obtaining that applicant's criminal history record information, as defined in 28 Code of Federal Regulations section 20.3(d), from the federal bureau of investigation and the agency responsible for retaining state criminal or disciplinary history in the applicant's home state.

6. "Charter member state" means member states that have enacted legislation to adopt this compact where the legislation predates the effective date of this compact as described in section 32-596.

7. "Commission" or "cosmetology licensure compact commission" means a government agency whose membership consists of all states that have enacted this compact and that operates as an instrumentality of the member states.

8. "Cosmetologist" means an individual who is licensed in the individual's home state to practice cosmetology.

9. "Cosmetology", "cosmetology services" and "practice of cosmetology" mean the care and services provided by a cosmetologist as set forth in the member state's statutes and rules in the state where the services are being provided.

10. "Current significant investigative information" means either of the following:

(a) Information that a state licensing authority, after an inquiry or investigation that complies with a member state's due process requirements, has reason to believe is not groundless and, if proved true, would indicate a violation of that state's laws regarding fraud or the practice of cosmetology.

(b) Information that indicates a licensee has engaged in fraud or represents an immediate threat to public health and safety, regardless of whether the licensee has been notified and had an opportunity to respond.

11. "Data system" means a repository of information about licensees, including license status, investigative information and adverse actions.

12. "Encumbrance" means a revocation or suspension of, or any limit on, the full and unrestricted practice of cosmetology by a state licensing authority.

13. "Executive committee" means a group of delegates elected or appointed to act on behalf of, and within the powers granted to the group by, the commission.

14. "Home state" means the member state that is a licensee's primary state of residence and where the licensee holds an active license to practice cosmetology, and the license does not have an adverse action restricting the practice of cosmetology or have an adverse action has been reported to the commission.

15. "Investigative information" means information, records or documents received or generated by a state licensing authority pursuant to an investigation or other inquiry.

16. "Jurisprudence requirement" means the assessment of an individual's knowledge of the laws governing the practice of cosmetology in a state.

17. "Licensee" means an individual who currently holds a license from a member state to practice as a cosmetologist.

18. "Member state" means any state that has adopted this compact.

19. "Multistate license" means a license that is issued and subject to the enforcement jurisdiction of the state licensing authority in a licensee's home state, that authorizes the licensee to practice cosmetology in member states and that includes authorizations for the licensee to practice cosmetology in all remote states pursuant to this compact.

20. "Remote state" means any member state other than the licensee's home state.

21. "Rule" means any rule that is adopted by the commission under this compact and that has the force of law.

22. "Single-state license" means a cosmetology license issued by a member state that authorizes the practice of cosmetology only within the issuing state and does not include any authorization outside of the issuing state.

23. "State" means a state, territory or possession of the United States and the District of Columbia.

24. "State licensing authority" means a member state's regulatory body that is responsible for issuing cosmetology licenses or otherwise overseeing the practice of cosmetology in that state.

§ 32-582 Member state requirements

A. To be eligible to join this compact and to maintain eligibility as a member state, a state must do all of the following:

1. License and regulate cosmetology.

2. Have a mechanism or entity in place to receive and investigate complaints about licensees practicing in that state.

3. Require licensees within that state to pass a cosmetology competency examination before being licensed to provide cosmetology services to the public in that state.

4. Require that licensees satisfy educational or training requirements in cosmetology before being licensed to provide cosmetology services to the public in that state.

5. Implement procedures for considering one or more of the following categories of information from applicants for licensure: criminal history, disciplinary history or background checks. Such procedures may include the submission of information by applicants for the purpose of obtaining an applicant's background check.

6. Participate in the data system, including through the use of unique identifying numbers.

7. Share information related to adverse actions with the commission and other member states, both through the data system and otherwise.

8. In compliance with the terms of this compact and rules of the commission, notify the commission and other member states of the existence of investigative information or current significant investigative information in the state's possession regarding a licensee practicing in that state.

9. Comply with rules that are enacted by the commission to administer this compact.

10. Accept licensees from other member states pursuant to this compact.

B. Member states may charge a fee for granting a license to practice cosmetology.

C. Individuals not residing in a member state shall continue to be able to apply for a member state's single-state license as provided under the laws of each member state. A single-state license granted pursuant to this subsection shall not be recognized as granting these individuals a multistate license to provide services in any other member state.

D. This compact does not affect the requirements established by a member state for the issuance of a single-state license.

E. A multistate license issued to a licensee by a home state to a resident of that state shall be recognized by each member state as authorizing the licensee to practice cosmetology in each member state.

F. The commission may not define the educational or professional requirements for a licensee to practice cosmetology. The member states retain sole jurisdiction over the provision of these requirements.

§ 32-583 Multistate licenses

A. To be eligible to apply to the state licensing authority of a licensee's home state for an initial multistate license under this compact, a licensee must hold an active and unencumbered single-state license to practice cosmetology in the licensee's home state.

B. On receiving an application for a multistate license, according to commission rules, a member state's state licensing authority shall ascertain whether the applicant meets the requirements for a multistate license under this compact.

C. If an applicant meets the requirements for a multistate license under this compact and any applicable commission rule, the state licensing authority that has received the application, within a reasonable time, shall grant a multistate license to that applicant and inform all member states of the grant of the multistate license.

D. A multistate license to practice cosmetology issued by a member state's state licensing authority shall be recognized by each member state as authorizing the practice of cosmetology as though that licensee held a single-state license to practice cosmetology in each member state, subject to the restrictions under this compact.

E. A multistate license granted pursuant to this compact may be effective for a definite period of time, concurrent with the licensure renewal period in the home state.

F. To maintain a multistate license under this compact, a licensee must do all of the following:

1. Agree to abide by the rules of the state licensing authority and the state scope of practice laws governing the practice of cosmetology of any member state in which the licensee provides services.

2. Pay all required fees related to the application and process and any other fees the commission may require by rule.

3. Comply with all other requirements regarding multistate licenses the commission may provide by rule.

G. A licensee practicing in a member state is subject to all scope of practice laws governing cosmetology services in that state.

H. The practice of cosmetology under a multistate license granted pursuant to this compact subjects the licensee to the jurisdiction of the state licensing authority, the courts and the laws of the member state in which the cosmetology services are provided.

§ 32-584 Reissuance of a multistate license by a new home state

A. A licensee may hold a multistate license that is issued by the licensee's home state in only one member state at a time.

B. If a licensee changes the licensee's home state by moving between two member states:

1. The licensee shall immediately apply for the reissuance of the licensee's multistate license in the licensee's new home state. The licensee shall pay all applicable fees and notify the previous home state in accordance with the commission's rules.

2. On receipt of an application to reissue a multistate license, the new home state shall verify that the multistate license is active, unencumbered and eligible for reissuance under the terms of this compact and the commission's rules. The multistate license that is issued by the previous home state shall be deactivated and all member states shall be notified in accordance with the commission's rules.

3. If required for initial licensure, the new home state may require a background check as specified in the laws of that state or the applicant's compliance with any jurisprudence requirements of the new home state.

4. Notwithstanding any other provision of this compact, if a licensee does not meet the requirements set forth in this compact for the reissuance of a multistate license by the new home state, the licensee is subject to the new home state requirements for the issuance of a single-state license in that state.

C. If a licensee changes the licensee's primary state of residence by moving from a member state to a nonmember state, or from a nonmember state to a member state, the licensee is subject to the state requirements for the issuance of a single-state license in the new home state.

D. This compact does not interfere with a licensee's ability to hold a single-state license in multiple states. For the purposes of this compact, a licensee may have only one home state and only one multistate license.

E. This compact does not interfere with the requirements established by a member state for the issuance of a single-state license.

§ 32-585 Authority of this compact commission and member state licensing authorities

A. This compact and any commission rule may not be construed to limit, restrict or in any way reduce the ability of a member state to enact and enforce laws or rules related to the practice of cosmetology in that state, if those laws or rules are consistent with the provisions of this compact.

B. Insofar as practical, a member state's state licensing authority shall cooperate with the commission and with each entity exercising independent regulatory authority over the practice of cosmetology according to the provisions of this compact.

C. Discipline is the sole responsibility of the state in which cosmetology services are provided. Accordingly, each member state's state licensing authority is responsible for receiving complaints about individuals practicing cosmetology in that state and for communicating all relevant investigative information about any adverse action to the other member states through the data system in addition to any other methods the commission may require by rule.

§ 32-586 Adverse actions

A. A licensee's home state has exclusive power to impose an adverse action against a licensee's multistate license issued by the home state.

B. A home state may take adverse action on a multistate license based on the investigative information, current significant investigative information or adverse action of a remote state.

C. In addition to the powers conferred by state law, each remote state's state licensing authority may:

1. Take adverse action against a licensee's authorization to practice cosmetology through the multistate license in that member state if both of the following apply:

(a) Only the licensee's home state may take adverse action against the multistate license issued by the home state.

(b) For the purposes of taking adverse action, the home state's state licensing authority gives the same priority and effect to reported conduct received from a remote state as it would if the conduct had occurred within the home state and the home state applies its own state laws to determine the appropriate action.

2. Issue cease and desist orders or impose an encumbrance on a licensee's authorization to practice within that member state.

3. Complete any pending investigations of a licensee who changes the licensee's primary state of residence during the course of the investigation. The state licensing authority may report the results of the investigation to the commission through the data system as described in this compact.

4. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses and the production of evidence. Subpoenas issued by a state licensing authority in a member state for the attendance and testimony of witnesses or the production of evidence from another member state shall be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings before it. The issuing state licensing authority shall pay any witness fees, travel expenses, mileage fees and other fees required by the service statutes of the state in which the witnesses or evidence is located.

5. If otherwise allowed by state law, recover from the affected licensee the costs of investigations and disposition of cases resulting from any adverse action taken against that licensee.

6. Take adverse action against the licensee's authorization to practice in that state based on the factual findings of another remote state.

D. A licensee's home state shall complete any pending investigation of a cosmetologist who changes the licensee's primary state of residence during the course of the investigation. The home state may take appropriate action and shall promptly report the conclusions of the investigation to the data system.

E. If an adverse action is taken by the home state against a licensee's multistate license, the licensee's authorization to practice in all other member states shall be deactivated until all encumbrances have been removed from the home state license. All home state disciplinary orders that impose an adverse action against a licensee's multistate license shall include a statement that the cosmetologist's authorization to practice is deactivated in all member states during the pendency of the order.

F. This compact does not override a member state's authority to accept a licensee's participation in an alternative program in lieu of adverse action. A licensee's multistate license shall be suspended for the duration of the licensee's participation in any alternative program.

G. In addition to the authority granted to a member state by its respective scope of practice laws or other applicable state law, a member state may participate with other member states in joint investigations of licensees.

H. Member states shall share any investigative, litigation or compliance materials in furtherance of any joint or individual investigation initiated under this compact.

§ 32-587 Active military members and their spouses

Active military members or their spouses shall designate a home state where the individual has a current license to practice cosmetology in good standing. The individual may retain the individual's home state designation during any period of service when that individual or the individual's spouse is on active duty assignment.

§ 32-588 Establishment and operation of the cosmetology licensure compact commission; powers and duties

A. The member states create and establish a joint government agency known as the cosmetology licensure compact commission whose membership consists of all member states that have enacted this compact. The commission is an instrumentality of the member states acting jointly and is not an instrumentality of any one state. The commission shall come into existence on or after the effective date of this compact as set forth in section 32-596.

B. Each member state shall have and be limited to one delegate selected by that member state's state licensing authority. The delegate shall be an administrator of the state licensing authority of the member state or the administrator's designee.

C. The commission shall establish by rule or bylaw a term of office for delegates and by rule or bylaw may establish term limits.

D. The commission may recommend removal or suspension of any delegate from office.

E. A member state's state licensing authority shall fill any vacancy of its delegate occurring on the commission within sixty days after the vacancy.

F. Each delegate is entitled to one vote on all matters that are voted on by the commission.

G. The commission shall meet at least once during each calendar year. Additional meetings may be held as set forth in the bylaws. The commission may meet by telecommunication, videoconference or other similar electronic means.

H. The commission may:

1. Establish the commission's fiscal year.

2. Establish code of conduct and conflict of interest policies.

3. Adopt rules and bylaws.

4. Maintain its financial records in accordance with the bylaws.

5. Meet and take actions that are consistent with this compact, the commission's rules and the bylaws.

6. Initiate and conclude legal proceedings or actions in the name of the commission, if the standing of any state licensing authority to sue or be sued under applicable law is not affected.

7. Maintain and certify records and information provided to a member state as the authenticated business records of the commission and designate an agent to do so on the commission's behalf.

8. Purchase and maintain insurance and bonds.

9. Borrow, accept or contract for services of personnel, including employees of a member state.

10. Conduct an annual financial review.

11. Hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of this compact and establish the commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel and other related personnel matters.

12. As set forth in the commission rules, charge a fee to a licensee for granting a multistate license and, as may be established by commission rule, charge the licensee a multistate license renewal fee for each renewal period. This paragraph does not prevent a home state from charging a licensee a fee for a multistate license or renewals of a multistate license or a fee for the jurisprudence requirement if the member state imposes such a requirement for granting a multistate license.

13. Assess and collect fees.

14. Accept any appropriate gifts, donations, grants of monies, other sources of revenue, equipment, supplies, materials and services and receive, use and dispose of the same except that at all times the commission shall avoid any appearance of impropriety or conflict of interest.

15. Lease, purchase, retain, own, hold, improve or use any property, real, personal or mixed, or any undivided interest in the property.

16. Sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed.

17. Establish a budget and make expenditures.

18. Borrow monies.

19. Appoint committees, including standing committees, composed of members, state regulators, state legislators or their representatives, consumer representatives and other interested persons as may be designated in this compact and the bylaws.

20. Provide and receive information from, and cooperate with, law enforcement agencies.

21. Elect a chairperson, vice chairperson, secretary and treasurer and other officers of the commission as provided in the commission's bylaws.

22. Establish and elect an executive committee, including a chairperson and a vice chairperson.

23. Adopt and provide to the member states an annual report.

24. Determine whether a state's adopted language is materially different from the model compact language such that the state would not qualify for participation in this compact.

25. Perform other functions as may be necessary or appropriate to achieve the purposes of this compact.

I. The commission shall adopt and provide an annual report to the member states.

§ 32-589 Executive committee; duties; members; meetings

A. The executive committee may act on behalf of the commission according to the terms of this compact. The powers, duties and responsibilities of the executive committee include:

1. Overseeing the day-to-day activities of the administration of this compact, including compliance with the provisions of this compact and the commission's rules and bylaws, and other duties as deemed necessary.

2. Recommending to the commission changes to the rules or bylaws, changes to this compact, fees charged to compact member states, fees charged to licensees and other fees.

3. Ensuring that compact administration services are appropriately provided, including by contract.

4. Preparing and recommending the budget.

5. Maintaining financial records on the commission's behalf.

6. Monitoring compact compliance of member states and providing compliance reports to the commission.

7. Establishing additional committees as necessary.

8. Exercising the powers and duties of the commission during the interim between commission meetings, except for adopting or amending rules, adopting or amending bylaws and exercising any other powers and duties expressly reserved to the commission by rule or bylaw.

9. Performing other duties as provided in the commission's rules or bylaws.

B. The executive committee shall be composed of up to seven voting members as follows:

1. The chairperson and vice chairperson of the commission and any other members of the commission who serve on the executive committee shall be voting members of the executive committee.

2. Other than the chairperson and vice chairperson, secretary and treasurer, the commission shall elect three voting members from the current membership of the commission.

C. The commission may elect ex officio, nonvoting members from a recognized national cosmetology professional association as approved by the commission. The commission's bylaws shall identify qualifying organizations and the manner of appointment if the number of organizations seeking to appoint an ex officio member exceeds the number of members specified in this section.

D. The commission may remove any member of the executive committee as provided in the commission's bylaws.

E. The executive committee shall meet at least annually. Annual executive committee meetings and any executive committee meeting at which it does not take or intend to take formal action on a matter for which a commission vote would otherwise be required shall be open to the public, except that the executive committee may meet in a closed, nonpublic session of a public meeting when dealing with any matter listed in section 32-590, subsection D.

F. The executive committee shall give five business days' advance notice of its public meetings by posting on its website and as determined to provide notice to persons with an interest in the public matters that the executive committee intends to address at those meetings.

G. The executive committee may hold an emergency meeting when acting for the commission to do any of the following:

1. Meet an imminent threat to public health, safety or welfare.

2. Prevent a loss of commission or participating state monies.

3. Protect public health and safety.

§ 32-590 Commission meetings

A. All meetings of the commission that are not closed pursuant to subsection D of this section shall be open to the public. Notice of public meetings shall be posted on the commission's website at least thirty days before the public meeting.

B. Notwithstanding subsection D of this section, the commission may convene an emergency public meeting by providing at least twenty-four hours' prior notice on the commission's website and by any other means as provided in the commission's rules. The commission may dispense with notice of proposed rulemaking under section 32-594, subsection L. The commission's legal counsel shall certify that one of the reasons justifying an emergency public meeting has been met.

C. Notice of all commission meetings shall provide the time, date and location of the meeting, and if the meeting is to be held or accessible via telecommunication, videoconference or other electronic means, the notice shall include the mechanism for access to the meeting.

D. The commission may convene in a closed, nonpublic meeting for the commission to discuss any of the following:

1. Noncompliance of a member state with its obligations under this compact.

2. The employment, compensation, discipline or other matters, practices or procedures related to specific employees or other matters related to the commission's internal personnel practices and procedures.

3. Current or threatened discipline of a licensee by the commission or by a member state's state licensing authority.

4. Current, threatened or reasonably anticipated litigation.

5. Negotiation of contracts for the purchase, lease or sale of goods, services or real estate.

6. The accusation of any person of a crime or the formal censure of any person.

7. Trade secrets or commercial or financial information that is privileged or confidential.

8. Information of a personal nature for which disclosure would constitute a clearly unwarranted invasion of personal privacy.

9. Investigative records compiled for law enforcement purposes.

10. Information related to any investigative reports prepared by or on behalf of or for use of the commission or other committee charged with responsibility of investigation or determination of compliance issues pursuant to this compact.

11. Legal advice.

12. Any matter specifically exempted from disclosure to the public by federal or member state law.

13. Any other matter as adopted by the commission by rule.

E. If a meeting or portion of a meeting is closed, the presiding officer shall state that the meeting will be closed and reference each relevant exempting provision. The reference shall be recorded in the minutes.

F. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken and the reasons for the actions, including a description of the views expressed. All documents considered in connection with an action shall be identified in the minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release only by a majority vote of the commission or order of a court of competent jurisdiction.

§ 32-591 Financing of the commission; assessments; annual review

A. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization and ongoing activities.

B. The commission may accept any and all appropriate sources of revenue, donations and grants of monies, equipment, supplies, materials and services.

C. The commission may levy on and collect an annual assessment from each member state and impose fees on licensees of member states to whom it grants a multistate license to cover the cost of the operations and activities of the commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount for member states shall be allocated based on a formula that the commission adopts by rule.

D. The commission may not incur obligations of any kind before securing the monies adequate to meet the obligations. The commission may not pledge the credit of any member states, except by and with the authority of the member state.

E. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission are subject to the financial review and accounting procedures established under its bylaws. All receipts and disbursements of monies handled by the commission are subject to an annual financial review by a certified or licensed public accountant, and the report of the financial review shall be included in and become part of the commission's annual report.

§ 32-592 Qualified immunity, defense and indemnification

A. The members, officers, executive director, employees and representatives of the commission are immune from suit and liability, both personally and in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities, except that this subsection does not protect any such person from suit or liability for any damage, loss, injury or liability caused by the intentional or wilful or wanton misconduct of that person. The procurement of insurance of any type by the commission does not in any way compromise or limit the immunity granted pursuant to this section.

B. The commission shall defend any member, officer, executive director, employee or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities or as determined by the commission that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities if the actual or alleged act, error or omission did not result from that person's intentional or wilful or wanton misconduct. This subsection does not prohibit the person against whom the claim is made from retaining counsel at the person's own expense.

C. The commission shall indemnify and hold harmless any member, officer, executive director, employee or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities if the actual or alleged act, error or omission did not result from the intentional or wilful or wanton misconduct of that person.

D. This section does not limit the liability of any licensee for professional malpractice or misconduct that is governed solely by any other applicable state laws.

E. This compact does not waive or otherwise abrogate a member state's state action immunity or state action affirmative defense with respect to antitrust claims under the Sherman Act, the Clayton Act or any other state or federal antitrust or anticompetitive law.

F. This compact is not a waiver of sovereign immunity by the member states or by the commission.

§ 32-593 Data system

A. The commission shall provide for the development, maintenance, operation and use of a coordinated database and reporting system.

B. The commission shall assign each applicant for a multistate license a unique identifier, as determined by commission rules.

C. Notwithstanding any other law, a member state shall submit a uniform data set to the data system on all individuals to whom this compact applies as required by commission rules, including:

1. Identifying information.

2. Licensure data.

3. Adverse actions against a license and information related to the adverse actions.

4. Nonconfidential information related to alternative program participation, the beginning and ending dates of the participation and other information related to the participation.

5. Any denial of application for licensure and the reason for the denial, excluding the reporting of any criminal history record information if it is prohibited by law.

6. The existence of investigative information.

7. The existence of current significant investigative information.

8. Other information that may facilitate the administration of this compact or the protection of the public, as determined by commission rules.

D. The records and information provided to a member state pursuant to this compact or through the data system, when certified by the commission or the commission's agent, constitute the authenticated business records of the commission and are entitled to any associated hearsay exception in any relevant judicial, quasi-judicial or administrative proceedings in a member state.

E. The existence of current significant investigative information and the existence of investigative information pertaining to a licensee in any member state is available only to other member states.

F. It is the responsibility of the member states to monitor the data system to determine whether adverse action has been taken against a licensee or license applicant. Adverse action information pertaining to a licensee or license applicant in any member state will be available to any other member state.

G. Member states that contribute information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.

H. Any information submitted to the data system that is subsequently expunged pursuant to federal law or the laws of the member state contributing the information shall be removed from the data system.

§ 32-594 Rulemaking; notice

A. The commission shall adopt reasonable rules to effectively and efficiently implement and administer this compact. A rule is invalid and has no force or effect only if a court of competent jurisdiction holds that the rule is invalid because the commission exercised its rulemaking authority in a manner that is beyond the scope and purposes of this compact or the powers granted pursuant to this compact, or based on another applicable standard of review.

B. Commission rules have the force of law in each member state, except that if commission rules conflict with the laws of the member state that establish the member state's scope of practice laws governing the practice of cosmetology as held by a court of competent jurisdiction, the commission rules are ineffective in that state to the extent of the conflict.

C. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this section and the rules adopted pursuant to this section. Rules become binding as of the date specified by the commission for each rule.

D. If a majority of the legislatures of the member states rejects a rule or portion of a rule by enacting a statute or resolution in the same manner used to adopt this compact within four years after the date of adoption of the rule, the rule has no further force and effect in any member state or to any state applying to participate in this compact.

E. Rules shall be adopted at a regular or special meeting of the commission.

F. Before adopting a proposed rule, the commission shall hold a public hearing and allow persons to provide oral and written comments, data, facts, opinions and arguments.

G. Before adopting a proposed rule, and at least thirty days before the meeting at which the commission will hold a public hearing on the proposed rule, the commission shall provide a notice of proposed rulemaking as follows:

1. On the commission's website or other publicly accessible platform.

2. To persons who have requested notice of the commission's notices of proposed rulemaking.

3. In such other ways as the commission specifies by rule.

H. The notice of proposed rulemaking shall include:

1. The time, date and location of the public hearing at which the commission will hear public comments on the proposed rule and, if different, the time, date and location of the meeting at which the commission will consider and vote on the proposed rule.

2. If the hearing is held via telecommunication, videoconference or other electronic means, the commission shall include the mechanism for access to the hearing in the notice of proposed rulemaking.

3. The text of the proposed rule and the reason for the proposed rule.

4. A request for comments on the proposed rule from any interested person.

5. The manner in which interested persons may submit written comments.

I. All hearings shall be recorded. A copy of the recording and all written comments and documents received by the commission in response to the proposed rule shall be available to the public.

J. This section does not require a separate hearing on each rule. Rules may be grouped for the commission's convenience at hearings required by this section.

K. By a majority vote of all members, the commission shall take final action on the proposed rule based on the rulemaking record and the full text of the rule.

L. The commission may adopt changes to the proposed rule if the changes do not enlarge the original purpose of the proposed rule.

M. The commission shall provide an explanation of the reasons for substantive changes that are made to the proposed rule as well as reasons for substantive changes that are not made but that were recommended by commenters.

N. The commission shall determine a reasonable effective date for the rule. Except for an emergency rule as provided in subsection O of this section, the effective date of the rule shall be at least forty-five days after the commission issues the notice that the commission adopted or amended the rule.

O. On determination that an emergency exists, the commission may consider and adopt an emergency rule with at least a five-day notice, with an opportunity to comment, provided that the usual rulemaking procedures provided in this compact are retroactively applied to the rule as soon as reasonably possible, and not later than ninety days after the rule's effective date. For the purposes of this subsection, an emergency rule is one that must be adopted immediately to:

1. Meet an imminent threat to public health, safety or welfare.

2. Prevent a loss of commission or member state monies.

3. Meet a deadline that is established by federal law to adopt a rule.

4. Protect public health and safety.

P. The commission or an authorized committee of the commission may direct revisions to a previously adopted rule for purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors. Public notice of any revisions shall be posted on the commission's website. The revision is subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the commission before the end of the notice period. If a challenge is not made, the revision takes effect without further action. If the revision is challenged, the revision may not take effect without the commission's approval.

Q. A member state's rulemaking requirements do not apply under this compact.

§ 32-595 Oversight, dispute resolution and enforcement; defaulting states; termination from compact

A. The executive and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to implement this compact.

B. Venue is proper and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings. This subsection does not affect or limit the selection or propriety of venue in any action against a licensee for professional malpractice or misconduct or in any similar matter.

C. The commission may receive service of process in any proceeding regarding the enforcement or interpretation of this compact and shall have standing to intervene in such a proceeding for all purposes. Failure to provide the commission service of process renders a judgment or order void.

D. If the commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or the adopted rules, the commission shall provide written notice to the defaulting state. The notice of default shall describe the default, the proposed means of curing the default and any other action that the commission may take and shall offer training and specific technical assistance regarding the default.

E. The commission shall provide a copy of the notice of default to the other member states.

F. If a state that is in default fails to cure the default, the defaulting state may be terminated from this compact on an affirmative vote of a majority of the delegates of the member states and all rights, privileges and benefits conferred on that state by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

G. Termination of membership in this compact shall be imposed only after all other means of securing compliance have been exhausted. The commission shall give notice of intent to suspend or terminate to the governor of the defaulting state, the majority and minority leaders of the defaulting state's legislature, the defaulting state's state licensing authority and the state licensing authority of each member state.

H. A state that has been terminated is responsible for all assessments, obligations and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

I. On the termination of a state's membership from this compact, the state shall immediately provide notice of the termination to all licensees who hold a multistate license within that state. The terminated state shall continue to recognize all licenses granted pursuant to this compact for at least one hundred eighty days after the date of the notice of termination.

J. The commission shall not bear any costs related to a state that is found to be in default or that has been terminated from this compact, unless agreed to in writing between the commission and the defaulting state.

K. The defaulting state may appeal the commission's action by petitioning the United States district court for the District of Columbia or the federal district where the commission has its principal offices. The prevailing party shall be awarded all costs of the litigation, including reasonable attorney fees.

L. On a member state's request, the commission shall attempt to resolve disputes related to this compact that arise among member states and between member and nonmember states.

M. The commission shall adopt a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

N. The commission, in the reasonable exercise of its discretion, shall enforce this compact and the commission's rules.

O. By majority vote as provided by commission rule, the commission may initiate legal action against a defaulting member state in the United States district court for the District of Columbia or the federal district where the commission has its principal offices to enforce compliance with this compact and its adopted rules. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party shall be awarded all costs of the litigation, including reasonable attorney fees. The remedies described in this subsection are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal law or the defaulting member state's law.

P. A member state may initiate legal action against the commission in the United States district court for the District of Columbia or the federal district where the commission has its principal offices to enforce compliance with this compact and its adopted rules. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party shall be awarded all costs of the litigation, including reasonable attorney fees.

Q. Only a member state may enforce this compact against the commission.

§ 32-596 Effective date and amendment of compact; withdrawal of member state

A. This compact is effective on the date on which this compact is enacted into law in the seventh member state.

B. On or after the effective date of this compact, the commission shall convene and review the enactment of each of the charter member states to determine if the statute enacted by each such charter member state is materially different than the model compact statute.

C. A charter member state whose enactment is found to be materially different from the model compact statute is entitled to the default process set forth in section 32-595.

D. If any member state is later found to be in default or is terminated or withdraws from this compact, the commission remains in existence and this compact remains in effect even if the number of member states is less than seven.

E. Member states enacting the compact subsequent to the charter member states are subject to the process set forth pursuant to section 32-588, subsection H, paragraph 24 to determine whether their enactments are materially different from the model compact language and whether they qualify for participation in the compact.

F. All actions taken for the commission's benefit or in furtherance of the purposes of the administration of this compact before the effective date of this compact or the effective date of the commission coming into existence are considered to be actions of the commission unless specifically repudiated by the commission.

G. A state that joins this compact is subject to the commission's rules and bylaws as they exist on the date on which this compact becomes law in that state. A rule that has been previously adopted by the commission shall have the full force and effect of law on the day this compact becomes law in that state.

H. A member state may withdraw from this compact by enacting a statute repealing that state's enactment of this compact. A member state's withdrawal does not take effect until one hundred eighty days after enactment of the repealing statute. Withdrawal does not affect the continuing requirement of the withdrawing state's state licensing authority to comply with the investigative and adverse action reporting requirements of this compact before the effective date of withdrawal. On the enactment of a statute withdrawing from this compact, a state shall immediately provide notice of the withdrawal to all licensees within that state. Notwithstanding any subsequent statutory enactment to the contrary, the withdrawing state shall continue to recognize all licenses granted pursuant to this compact for at least one hundred eighty days after the date of the notice of withdrawal.

I. This compact does not invalidate or prevent any licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with this compact.

J. This compact may be amended by the member states. An amendment to this compact does not become effective and binding on any member state until it is enacted into the laws of all member states.

§ 32-597 Construction and severability

A. The compact and the commission's rulemaking authority shall be liberally construed to effectuate the purposes, implementation and administration of this compact. Provisions of this compact expressly authorizing or requiring the adoption of rules do not limit the commission's rulemaking authority solely for those purposes.

B. The provisions of this compact are severable, and if any phrase, clause, sentence or provision of this compact is held by a court of competent jurisdiction to be contrary to the constitution of any member state, of a state seeking participation in this compact or of the United States, or the applicability to any government, agency, person or circumstance is held to be unconstitutional by a court of competent jurisdiction, the validity of the remainder of this compact and the applicability to any other government, agency, person or circumstance is not affected.

C. Notwithstanding subsection B of this section, the commission may deny a state's participation in the compact or, in accordance with section 32-595, may terminate a member state's participation in the compact if the commission determines that a constitutional requirement of a member state is a material departure from this compact. Otherwise, if this compact is held to be contrary to the constitution of any member state, this compact shall remain in full force and effect as to the remaining member states and in full force and effect as to the member state affected as to all severable matters.

§ 32-598 Consistent effect and conflict with other states

A. This compact does not prevent or inhibit the enforcement of any other law of a member state that is consistent with this compact.

B. Any laws, statutes, rules or other legal requirements in a member state that conflict with this compact are superseded to the extent of the conflict.

C. All permissible agreements between the commission and the member states are binding in accordance with their terms.

Chapter 6 Certified Public Accountants

Article 1 Board of Accountancy

§ 32-701 Definitions

In this chapter, unless the context otherwise requires:

1. "Accounting services" means services that are commonly and historically performed by accountants, including recording or summarizing financial transactions, bookkeeping, analyzing or verifying financial information, reporting financial results, financial planning or providing attest services, compilation services, tax services or consulting services.

2. "Accredited institution" means any public or private regionally or nationally accredited college or university that is accredited by an organization recognized by the council for higher education accreditation or its successor agency.

3. "Attest services" means the following services to be performed by the holder of a certificate issued by the board:

(a) Audits or other engagements to be performed in accordance with the statements on auditing standards adopted by the American institute of certified public accountants.

(b) Reviews of financial statements to be performed in accordance with the statements on standards for accounting and review services adopted by the American institute of certified public accountants.

(c) Any examination of prospective financial information to be performed in accordance with the statements on standards for attestation engagements adopted by the American institute of certified public accountants.

(d) Any engagement to be performed in accordance with the standards of the public company accounting oversight board or its successor.

(e) Any examination, review or agreed on procedure engagement to be performed in accordance with the statements on standards for attestation engagements adopted by the American institute of certified public accountants, other than an examination described in subdivision (c) of this paragraph.

4. "Board" means the Arizona state board of accountancy established by section 32-702.

5. "Business organization" means a partnership, professional corporation, professional limited liability company, limited liability company or limited liability partnership or any other entity that is recognized by the board and that is established under the laws of any state or foreign country.

6. "Certified public accountant" means an individual who has been issued a certificate of authority by the board to practice as a certified public accountant or who meets the limited reciprocity privilege requirements pursuant to section 32-725.

7. "Client" means a person or entity, other than one's employer, for whom accounting services are provided.

8. "Compilation services" means providing a service of any compilation engagement to be performed in accordance with the statements on standards for accounting and review services.

9. "Consulting services" includes management advisory services, litigation support services, valuation services and other services that require the use of technical skills, education, observation, experience and knowledge to develop an analytical approach to process and to present findings, conclusions or recommendations.

10. "Conviction" means a judgment of conviction by any state or federal court of competent jurisdiction in a criminal cause, regardless of whether an appeal is pending or could be taken, and includes any judgment or order based on a plea of no contest.

11. "CPA designation" means the title "certified public accountant" or any abbreviation or grammatical derivative of the term "certified public accountant".

12. "Disciplinary action" means any other regulatory sanctions imposed by the board in combination with, or as an alternative to, relinquishment, revocation or suspension of a certificate or registration, including the imposition of:

(a) An administrative penalty in an amount not to exceed $2,000 for each violation of this chapter or rules adopted pursuant to this chapter.

(b) Restrictions on the scope of the registrant's practice of accounting.

(c) Pre-issuance and post-issuance peer review.

(d) Professional education requirements.

(e) A decree of censure.

(f) Probation requirements best adapted to protect the public welfare.

(g) Reimbursement of the board's costs of investigations and proceedings initiated under this chapter, including attorney fees.

(h) A requirement for restitution payments to accounting services clients or to other persons suffering economic loss resulting from violations of this chapter or rules adopted pursuant to this chapter.

13. "Employer" means a person or entity that hires an individual to perform a service and that directs and controls the manner in which the service is performed.

14. "Federal securities laws" means the securities act of 1933, the securities exchange act of 1934, the public utility holding company act of 1935 and the investment company act of 1940, as amended.

15. "Financial statements":

(a) Means statements and footnotes related to statements that purport to show a financial position or changes in a financial position in conformity with generally accepted accounting principles or other comprehensive basis of accounting.

(b) Includes balance sheets, statements of income, statements of retained earnings, statements of cash flows, statements of changes in equity and other commonly used or recognized summaries of financial information.

(c) Does not include tax returns or information contained in tax returns.

16. "Firm" means a business organization, a sole proprietorship or an individual who is registered pursuant to section 32-731.

17. "Good cause" means factors that temporarily prevent a registrant from satisfying a particular requirement in a specific instance as determined by the board and may include:

(a) A disability.

(b) An illness.

(c) A physical or mental condition.

(d) Military service.

(e) Financial hardship.

(f) A natural disaster.

(g) Any condition or circumstance that the board deems relevant.

18. "Jurisdiction" means, for the purposes of examination, certification, firm registration or limited reciprocity privilege, the fifty states of the United States, the District of Columbia, the United States Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands or the Commonwealth of Puerto Rico.

19. "Letter of concern" means an advisory letter to notify a registrant that, while the evidence does not warrant disciplinary action, the board believes that the registrant should modify or eliminate certain practices and that continuation of the activities that led to the evidence being submitted to the board may result in board action against the registrant. A letter of concern is not a disciplinary action.

20. "Limited reciprocity privilege" means the permission to practice as a certified public accountant in this state pursuant to section 32-725 for an individual whose principal place of business is outside of this state.

21. "Management advisory services" means advisory services consisting of the development of findings, conclusions or recommendations for the recipient's consideration and decision making.

22. "Office", for the purposes of firm registration, limited reciprocity privilege and fees, means any physical location that is used in the practice of accounting in this state and that is owned, leased, licensed for use or maintained by the firm or someone under the firm's authority.

23. "Practice of accounting" means providing accounting services for a client or an employer.

24. "Registrant" means any certified public accountant or firm that is registered with the board.

25. "Related courses" means:

(a) Business administration.

(b) Statistics.

(c) Computer science, information systems or data processing.

(d) Economics.

(e) Finance.

(f) Management.

(g) Business law.

(h) College algebra or more advanced mathematics.

(i) Advanced written communication.

(j) Advanced oral communication.

(k) General ethics.

(l) Marketing.

(m) Other courses that are closely related to the subject of accounting or that are satisfactory to the board.

26. "Sole proprietor" means the owner of a sole proprietorship.

27. "Sole proprietorship" means a business that is owned by one individual and that does not have a legal distinction between the owner and the business.

§ 32-702 Arizona state board of accountancy; membership; administrative duties; compensation

A. The Arizona state board of accountancy is established to administer and enforce this chapter.

B. The board consists of seven members who are residents of this state and who are appointed by the governor as follows:

1. Five members who currently hold valid certificates issued pursuant to this chapter. At least three of these members must be in active public practice as certified public accountants. No more than one of these members may be from the same firm. If a member's certificate is on probation, revoked or suspended, the member's appointment automatically terminates and the position becomes vacant.

2. Two public members who do not hold a certificate issued pursuant to this chapter but who have professional or practical experience in using accounting services and financial statements and who are qualified to make judgments about the qualifications and conduct of persons and firms subject to this chapter.

C. The term of office of members of the board is five years, beginning and ending on July 3, except that the governor may remove any member for neglect of duty or other just cause. The governor shall fill vacancies by appointment for the unexpired term. A person who has served a complete term is not eligible for reappointment for a period of one year.

D. The board shall annually elect a president, secretary and treasurer from among its members. The president, secretary or treasurer may sign and approve claims filed against the board of accountancy fund to pay expenses incurred under this chapter.

E. The board shall have a seal that shall be judicially noticed.

F. The board shall retain or provide for retention of the following according to its retention schedule pursuant to section 41-151.19:

1. All documents under oath that are filed with the board.

2. Records of its proceedings.

G. Each member of the board or member of an accounting and auditing, tax, peer review, law, certification or continuing professional education committee appointed by the board pursuant to section 32-703, subsection B, paragraph 10 is eligible for compensation of one hundred dollars for each day or part of a day spent, plus reimbursement for the member's actual and necessary expenses incurred, in discharging the member's official duties.

§ 32-703 Powers and duties; rules; executive director; advisory committees and individuals

A. The primary duty of the board is to protect the public from unlawful, incompetent, unqualified or unprofessional certified public accountants through certification, regulation and rehabilitation.

B. The board may:

1. Investigate complaints filed with the board or on its own motion to determine whether a certified public accountant has engaged in conduct in violation of this chapter or rules adopted pursuant to this chapter.

2. Establish and maintain high standards of competence, independence and integrity in the practice of accounting by a certified public accountant as required by generally accepted auditing standards and generally accepted accounting principles and, in the case of publicly held corporations or enterprises offering securities for sale, in accordance with state or federal securities agency accounting requirements.

3. Establish reporting requirements that require registrants to report:

(a) The imposition of any discipline on the right to practice before the federal securities and exchange commission, the internal revenue service, any state board of accountancy, other government agencies or the public company accounting oversight board.

(b) Any criminal conviction, any civil judgment involving negligence in the practice of accounting by a certified public accountant and any judgment or order as described in section 32-741, subsection A, paragraphs 7 and 8.

4. Establish basic requirements for continuing professional education of certified public accountants, except that the requirements shall not exceed eighty hours in any registration renewal period.

5. Adopt procedures concerning disciplinary actions, administrative hearings and consent decisions.

6. Issue to qualified applicants certificates executed for and on behalf of the board by the signatures of the president and secretary of the board.

7. Adopt procedures and rules to administer this chapter.

8. Require peer review pursuant to rules adopted by the board on a general and random basis of the professional work of a registrant engaged in the practice of accounting.

9. Subject to title 41, chapter 4, article 4, employ an executive director and other personnel that it considers necessary to administer and enforce this chapter.

10. Appoint accounting and auditing, tax, peer review, law, certification, continuing professional education or other committees or individuals as it considers necessary to advise or assist the board or the board's executive director in administering and enforcing this chapter. These committees and individuals serve at the pleasure of the board.

11. Take all action that is necessary and proper to effectuate the purposes of this chapter.

12. Sue and be sued in its official name as an agency of this state.

13. Adopt and amend rules concerning the definition of terms, the orderly conduct of the board's affairs and the effective administration of this chapter.

14. Delegate to the executive director the authority to:

(a) Approve an applicant to take the uniform certified public accountant examination pursuant to section 32-723.

(b) Issue a certificate of certified public accountant pursuant to section 32-721.

(c) Approve an application for firm registration pursuant to section 32-731.

(d) Approve a registrant's name change and reissue a certificate of certified public accountant due to the name change.

(e) Approve a registrant's cancellation request pursuant to section 32-730.02.

(f) Approve a request for retired status pursuant to section 32-730.04.

(g) Approve reactivation from inactive status or retired status pursuant to section 32-732.

(h) Approve compliance with peer review requirements pursuant to this section.

(i) Approve compliance with continuing professional education audits.

(j) Approve continuing professional education compliance with decisions and orders.

(k) Terminate decisions and orders based on a registrant's successful completion of all order requirements.

(l) Approve a request for continuing professional education reciprocity.

C. The board or an authorized agent of the board may:

1. Issue subpoenas to compel the attendance of witnesses or the production of documents. If a subpoena is disobeyed, the board may invoke the aid of any court in requiring the attendance and testimony of witnesses and the production of documents.

2. Administer oaths and take testimony.

3. Cooperate with the appropriate authorities in other jurisdictions in investigation and enforcement concerning violations of this chapter and comparable statutes of other jurisdictions.

4. Receive evidence concerning all matters within the scope of this chapter.

§ 32-704 Immunity from liability

There is no liability on the part of, and no cause of action may arise against, the board, its members or professional investigators or any board formed committee and its members, agents or employees for any act done or proceeding undertaken or performed in good faith and in furthering the purposes of this chapter.

§ 32-705 Board of accountancy fund; disposition of monies

(L24, Ch. 222, sec. 5. Eff. until 7/1/28)

A. The board of accountancy fund is established consisting of fees authorized by this chapter. Except as provided by subsection C of this section, the board shall deposit, pursuant to sections 35-146 and 35-147, eighty-five percent of all monies collected under this chapter in the board of accountancy fund and the remaining fifteen percent in the state general fund.

B. Monies deposited in the fund are subject to section 35-143.01.

C. Monies collected by the board as administrative penalties pursuant to this chapter shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

D. The legislature shall appropriate monies from the fund for the expenses of administering this chapter, including:

1. Costs of conducting investigations, taking testimony and procuring the attendance of witnesses before the board or its committees.

2. Legal proceedings taken to enforce this chapter.

3. Educational programs to benefit the public, registrants and their employees.

§ 32-705 (Version 2) Board of accountancy fund; disposition of monies

(L24, Ch. 222, sec. 6. Eff. 7/1/28)

A. The board of accountancy fund is established consisting of fees authorized by this chapter. Except as provided by subsection C of this section, the board shall deposit, pursuant to sections 35-146 and 35-147, ninety percent of all monies collected under this chapter in the board of accountancy fund and the remaining ten percent in the state general fund.

B. Monies deposited in the fund are subject to section 35-143.01.

C. Monies collected by the board as administrative penalties pursuant to this chapter shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

D. The legislature shall appropriate monies from the fund for the expenses of administering this chapter, including:

1. Costs of conducting investigations, taking testimony and procuring the attendance of witnesses before the board or its committees.

2. Legal proceedings taken to enforce this chapter.

3. Educational programs to benefit the public, registrants and their employees.

§ 32-707 Record of proceedings; admissibility as evidence

The board shall keep records of its proceedings, and in any proceeding in court, civil or criminal, arising out of or founded upon any provision of this chapter, copies of such records certified as correct under the seal of the board shall be admissible in evidence as tending to prove the content of such records.

Article 2 Certification and Registration

§ 32-721 Certified public accountants; qualifications

A. The board shall issue a certificate of certified public accountant to any individual who complies with all of the following:

1. Meets the requirements of section 41-1080.

2. Is at least eighteen years of age.

3. Has not engaged in any conduct that would constitute grounds for revocation or suspension of a certificate or other disciplinary action pursuant to section 32-741.

4. Meets the requirements of subsection B, C or D of this section.

B. If the applicant passes the uniform certified public accountant examination and has never been certified, registered or licensed as a certified public accountant in this state or another jurisdiction, the applicant must comply with both of the following:

1. Have had at least two thousand hours of paid or unpaid experience, either before or after passing all sections of the uniform certified public accountant examination, that has exposed the applicant to and provided the applicant with experience in the practice of accounting. The applicant's experience must be sufficient to demonstrate the applicant's ability for critical inquiry and analysis of financial accounting information, including balance sheets, income statements, cash flow statements or tax returns and the applicant's ability to communicate, either orally or in writing, on the results of an inquiry or analysis of that information to an employer, client or third party.

2. Present satisfactory evidence that the person has successfully obtained a baccalaureate degree or higher degree from an accredited institution or a college or university that maintains standards comparable to those of an accredited institution and that the applicant has completed at least one hundred fifty semester hours of education of which:

(a) At least thirty-six semester hours are nonduplicative accounting courses of which at least thirty semester hours are upper-level courses.

(b) At least thirty semester hours are related courses.

C. If the applicant passes the uniform certified public accountant examination or the international qualification examination and has a certificate, registration or license to practice as a certified public accountant in another jurisdiction and the applicant has never had a certificate issued by the board expire or be relinquished or revoked, at least one of the following shall apply:

1. The certificate, registration or license is issued by a jurisdiction whose requirements are determined by the board to be substantially equivalent to the requirements prescribed in subsection B of this section.

2. The applicant has a baccalaureate degree or its equivalent or a higher degree from an accredited institution or a college or university that maintains standards comparable to those of an accredited institution and either of the following applies:

(a) The applicant has been employed as a certified public accountant in the practice of accounting for at least three years and has completed at least one hundred fifty semester hours of education that includes both of the following:

(i) At least twenty-four semester hours of nonduplicative accounting courses, of which twelve semester hours are upper-level courses.

(ii) At least eighteen semester hours in related courses.

(b) The applicant has been employed as a certified public accountant in the practice of accounting for at least five of the ten preceding years and has completed both of the following:

(i) At least twenty-four semester hours of nonduplicative accounting courses, of which twelve semester hours are upper-level courses.

(ii) At least eighteen semester hours in related courses.

3. The applicant has been employed as a certified public accountant in the practice of accounting for at least ten of the fifteen preceding years.

D. If an applicant passes the international uniform certified public accountant qualification examination of the American institute of certified public accountants, all of the following apply:

1. The applicant's country has a mutual recognition agreement with the national association of state boards of accountancy that has been adopted by the board.

2. The board recognizes that the applicant's qualifications are substantially equivalent to the qualifications of certified public accountants in the United States in the areas of education, examination and experience.

§ 32-723 Uniform certified public accountant examination; qualifications

A. A person shall not be permitted to take the uniform certified public accountant examination unless the person presents satisfactory evidence that the person has successfully obtained a baccalaureate degree or a higher degree from an accredited institution or a college or university that maintains standards comparable to those of an accredited institution. The evidence must show both of the following:

1. At least twenty-four semester hours of nonduplicative accounting courses of which twelve semester hours are upper-level courses.

2. At least eighteen semester hours in related courses.

B. The board may contract with a public or private entity for the administration of the examination. The examination may be conducted under a uniform examination system.

C. Within a reasonable time after the examination the board or its contracted agent shall notify each candidate of the candidate's grade. Any candidate may request a grade review or an appeal by submitting a uniform certified public accountant examination score review or appeal form to the board or the board's contracted agent.

§ 32-725 Limited reciprocity privilege; qualifications; definition

A. The limited reciprocity privilege may be exercised by an individual who is not a resident of this state and who meets the requirements of this section.

B. To qualify to exercise the limited reciprocity privilege, an individual must:

1. Have a principal place of business that is not in this state.

2. Not have or represent to have an office in this state.

3. Not be the subject of suspension or revocation of a certificate as provided by section 32-741 or relinquishment of a certificate as provided by section 32-730.06.

4. Hold a valid registration, certificate or license as a certified public accountant issued by another jurisdiction and either of the following applies:

(a) The other jurisdiction requires as a condition of licensure that an individual has all of the following:

(i) At least one hundred fifty semester hours of college education, including a baccalaureate degree or a higher degree that is conferred by an accredited institution or a college or university that maintains standards that are comparable to those of an accredited institution.

(ii) A passing grade on the uniform certified public accountant examination.

(iii) At least one year of experience in the practice of accounting that has been verified.

(b) The individual meets the qualifications prescribed in section 32-721, subsection C.

C. An individual qualifying for limited reciprocity privilege under this section is considered to have qualifications that are substantially equivalent to the requirements prescribed pursuant to this chapter and has all of the privileges of registrants, certificate holders or licensees in this state without obtaining a registration, certificate or license under this chapter.

D. An individual qualifying for limited reciprocity privilege under this section may use the CPA designation and may offer or practice accounting in person or by mail, telephone or electronic means. A notice, fee or other submission is not required. The individual is subject to the requirements prescribed in subsection E of this section.

E. Each individual who holds a registration, certificate or license issued by another jurisdiction and who exercises the limited reciprocity privilege and each partnership, corporation or other entity engaging in the practice of accounting as provided by this section, as a condition of exercising the privilege provided by this section:

1. Shall:

(a) Comply with article 3 of this chapter and rules adopted pursuant to article 3 of this chapter. In any investigation or other proceedings conducted pursuant to article 3 of this chapter, an individual claiming permission to practice as a certified public accountant in this state under the limited reciprocity privilege has the burden of demonstrating that the applicable requirements of subsection B of this section have been satisfied.

(b) Cease the offering or practicing of accounting in person or by mail, telephone or electronic means in this state if the individual no longer satisfies the requirements of subsection B of this section or the partnership, corporation or other entity no longer satisfies the requirements of subsection G of this section.

2. Is subject to:

(a) The personal and subject matter jurisdiction of the board and the power of the board to investigate complaints and take disciplinary action.

(b) Service by either of the following:

(i) The appointment of the state board that issued the registration, certificate or license to the individual as agent, on whom process may be served in any action or proceeding against the person by the board.

(ii) Directly on the person.

F. Any individual who holds a valid registration, certificate or license as a certified public accountant issued by another jurisdiction or a foreign country, whose principal place of business is not in this state and who does not otherwise qualify under this section for limited reciprocity privilege may enter this state and provide services if the services are limited to the following:

1. Expert witness services.

2. Teaching or lecturing.

3. Other services as determined by the board.

G. A business organization formed under the laws of another jurisdiction relating to the practice of accounting in that jurisdiction may use the CPA designation in this state and may engage in the practice of accounting in this state, including the provision of attest services, without having to register as a firm if all of the following apply:

1. The business organization is owned by or employs an individual who is a limited reciprocity privilege holder pursuant to this section.

2. The business organization is in good standing in its principal place of business under the laws of that jurisdiction relating to the practice of accounting.

3. The principal place of business of the limited reciprocity privilege holder is a recognized place of business for the practice of accounting by the business organization.

4. The business organization does not have an office in this state and does not represent that it has an office in this state.

5. The business organization holds an active permit or registration as a certified public accountant firm in another jurisdiction.

6. The practice of accounting is performed by or under the direct supervision of an individual who is qualified for the limited reciprocity privilege under this section.

H. For the purposes of this section, "principal place of business" means the office designated by the individual or firm as the principal location for the individual's or firm's practice of accounting.

§ 32-729 Fees

The board shall establish and collect:

1. A uniform fee from an applicant for each initial examination and reexamination application pursuant to section 32-723 to cover reasonable costs of reviewing the applicant's eligibility to take the examination and facilitating the applicant to take the examination until the applicant passes all sections.

2. A uniform fee from each applicant for a certificate to be issued pursuant to section 32-721.

3. A uniform registration fee of at least one hundred and not more than three hundred dollars from each applicant for registration as a certified public accountant pursuant to section 32-730. The registration fee is due during the month of the anniversary of the registrant's birth. Registrants for less than two years shall be charged on a pro rata basis for the remainder of the registration period. The board shall establish and collect a late fee, if applicable, of not more than one hundred dollars.

4. A uniform registration fee of at least one hundred dollars and not more than three hundred dollars from each applicant for registration as a firm pursuant to section 32-730. The registration fee is due during the month of the anniversary of the effective date of the firm's formation. The board shall establish and collect a late fee, if applicable, of not more than one hundred dollars. The board shall not charge a fee for the registration of additional offices of the same firm or for the registration of a sole proprietorship or an individual who is required to register as a firm pursuant to section 32-731.

5. A uniform application fee in an amount to be determined by the board to reinstate pursuant to this chapter.

6. A uniform registration fee of fifty dollars for retired status registration as described in section 32-730.04. The board shall establish and collect a late fee, if applicable, and it is the intent of the legislature that the fee be not more than one hundred dollars.

§ 32-730 Biennial registration; continuing professional education

A. Except as provided in subsection B of this section and in section 32-4301, the board shall require every certified public accountant and firm to register once every two years with the board and pay a registration fee pursuant to section 32-729.

B. The registration fee for certified public accountants may be reduced or waived by the board for registrants with a disability to a degree precluding the continuance of their practice for six months or more prior to the due date of any renewal fee.

C. At the time of registration, every certified public accountant, as a prerequisite to biennial registration, shall submit to the board satisfactory proof in a manner prescribed by the board that the registrant has completed the continuing professional education requirements established by the board. The board may grant a full or partial exemption from continuing professional education requirements or an extension of time to complete the continuing professional education requirements for registrants on a demonstration of good cause.

§ 32-730.01 Inactive status; exception

A. A registrant who meets all of the following requirements may request that the registrant's certificate be placed on inactive status:

1. Completes the forms prescribed by the board.

2. Does not provide attest services or compilation services in this state.

3. Does not provide accounting services for a fee or other compensation in this state.

4. Does not have a certificate under a disciplinary order by the board, except for suspension for nonregistration pursuant to section 32-741.01.

5. Does not have disciplinary proceedings initiated against the registrant.

B. A registrant whose certificate is on inactive status:

1. Shall continue to register once every two years with the board and pay fifty percent of the registration fee and one hundred percent of any applicable late fee pursuant to section 32-729.

2. Shall not do any of the following:

(a) Provide attest services or compilation services in this state.

(b) Provide accounting services for a fee or other compensation in this state.

(c) Assume or use the CPA designation in this state unless accompanied by the word "inactive".

C. The board may reactivate a registrant's inactive certificate only once.

D. A certificate expires if it has been inactive for more than six years.

E. Subsections C and D of this section do not apply if inactive status is approved by the board for good cause based on a registrant's disability.

§ 32-730.02 Canceled status

A. A registrant may cancel a certificate or registration by submitting a written request on a form prescribed by the board. A registrant whose certificate or registration is under a disciplinary order by the board, except for suspension for nonregistration pursuant to section 32-741.01, or against whom disciplinary proceedings have been initiated may not cancel the certificate or registration.

B. An individual whose certificate has been canceled shall not assume or use the CPA designation while the certificate remains on canceled status unless the individual qualifies for limited reciprocity privilege pursuant to section 32-725.

§ 32-730.03 Expired status

A. A registrant's certificate or registration expires if any of the following applies:

1. Section 32-730.01, subsection D.

2. Section 32-741.01, subsection D.

3. Section 32-741.02, subsection D.

4. The registrant fails to meet firm registration requirements prescribed by this chapter and is not granted or exhausts an extension of time to comply with firm registration requirements pursuant to section 32-731, subsection F.

B. A registrant whose certificate or registration has expired shall not assume or use the CPA designation while the certificate remains on expired status unless the individual qualifies for limited reciprocity privilege pursuant to section 32-725.

§ 32-730.04 Retired status

A. A registrant who meets all of the following requirements may request that the registrant's certificate be placed on retired status:

1. Completes the forms prescribed by the board.

2. Is at least fifty-five years of age.

3. Has been a certified public accountant in one or more jurisdictions for at least twenty years.

4. Does not have a certificate under a disciplinary order by the board, except for suspension for nonregistration pursuant to section 32-741.01.

5. Does not have disciplinary proceedings initiated against the registrant.

6. Does not provide attest services or compilation services in this state.

7. Does not provide accounting services for a fee or other compensation in this state.

B. A registrant whose certificate is on retired status:

1. Shall continue to register once every two years with the board and pay a registration fee and all of an applicable late fee as prescribed by section 32-729.

2. Shall not do any of the following:

(a) Provide attest services or compilation services in this state.

(b) Provide accounting services for a fee or other compensation in this state.

(c) Assume or use the CPA designation in this state unless accompanied by the word "retired" or the abbreviation "RET".

§ 32-730.05 Revoked status

An individual whose certificate has been revoked shall not assume or use the CPA designation.

§ 32-730.06 Relinquished status

A. A registrant may relinquish a certificate or firm registration pending or in lieu of an investigation or disciplinary proceeding or while under a disciplinary order. The board shall consider a relinquishment tendered by a registrant pursuant to this section and shall determine whether to accept the relinquishment. The board shall issue an order documenting its decision.

B. An individual whose certificate, or an individual, sole proprietor or business organization whose firm registration, has been relinquished shall not assume or use the CPA designation.

C. If the board accepts the relinquishment of a certificate of a certified public accountant or registration of a firm, the registrant shall acknowledge that disciplinary proceedings have been initiated against the registrant pursuant to article 3 of this chapter and that the registrant relinquishes the right to practice accounting as a certified public accountant or firm in this state. The registrant shall acknowledge that the registrant understands both of the following:

1. If the registrant chooses to apply for a new certificate or firm registration, the registrant shall meet all requirements for certification or firm registration pursuant to section 32-731.

2. In deciding whether to issue a new certificate or firm registration to the registrant, the board will consider all disciplinary actions currently pending against the registrant and any other matters it determines to be appropriate.

§ 32-731 Certified public accountant firm registration requirements; performance of attest services and compilation services; definition

A. Except as provided in section 32-725, subsection G, once every two years each of the following shall pay the registration fee pursuant to section 32-729 and register with the board as a firm:

1. A business organization that meets all of the following criteria:

(a) Has a simple majority of the ownership, in terms of direct and indirect financial interests and voting rights, that belongs to holders in good standing of certificates or licenses as certified public accountants in any jurisdiction.

(b) Has an office in this state.

(c) Either:

(i) Performs attest services or compilation services.

(ii) Uses the CPA designation in its firm name.

2. A sole proprietorship that meets all of the following criteria:

(a) Has an owner that is a certified public accountant in good standing in this state.

(b) Has an office in this state.

(c) Either:

(i) Performs attest services or compilation services.

(ii) Uses the CPA designation in its business name, unless the business name is the name of the sole proprietor as registered with the board.

3. An individual who meets both of the following criteria:

(a) Is a certified public accountant in good standing in this state.

(b) Either:

(i) Performs attest services or compilation services in this state, other than as an owner or employee of a sole proprietorship or business organization required to register under paragraph 1 or 2 of this subsection or in the capacity as an employee of a governmental entity.

(ii) Uses the CPA designation, unless the name used is the name of the individual as registered with the board.

B. Attest services or compilation services shall be provided only through a registered firm in good standing in this state. Any attest services or compilation services reports issued by a firm must be signed by a person who is certified pursuant to this chapter or qualified to exercise the limited reciprocity privilege pursuant to section 32-725, subsection G.

C. An application or registration pursuant to this section shall be made by an owner of the firm who is a certified public accountant in good standing. A firm that is registered pursuant to this section may use the CPA designation in connection with its firm name as provided for by the board in its rules.

D. A firm that applies or registers pursuant to this section shall list in its application or registration all jurisdictions in which the firm has any disciplinary actions, other than for failure to timely renew a registration, license or permit, by any other jurisdiction.

E. Except as provided in subsection F of this section, an applicant for registration or a firm registered pursuant to this section shall notify the board in writing within one month of any change in owners that results in less than a simple majority of the ownership in terms of direct and indirect financial interests and voting rights that belong to holders in good standing of certificates or licenses as certified public accountants in any jurisdiction.

F. The board or the board's executive director may grant a reasonable period of time for the firm to take corrective action to maintain its qualifications as a firm.

G. Professional corporations that are composed of certified public accountants shall meet the requirements of title 10, chapter 20 and any additional nonconflicting requirements contained in this section.

H. Limited liability companies, professional limited liability companies and limited liability partnerships composed of certified public accountants shall meet the requirements of title 29, chapter 5 or 7 and any additional nonconflicting requirements contained in this section.

I. A registrant may not use any firm name other than the firm name that is registered with the board.

J. For the purposes of this section, "good standing" means:

1. For an individual, a status that allows the individual to use the CPA designation and to perform accounting services for a fee or other compensation.

2. For a firm, a status that allows the firm to use the CPA designation.

§ 32-732 Reactivation from inactive or retired status; reinstatement from canceled, expired, relinquished or revoked status

A. A certified public accountant with a certificate status of inactive or retired may request that the certified public accountant's certificate be reactivated if all of the following apply:

1. The registrant files an application for renewal on the form prescribed by the board and pays the registration fee pursuant to section 32-729.

2. The registrant submits proof that the registrant has satisfied continuing professional education requirements as prescribed by the board.

3. Either:

(a) The registrant affirms that the registrant has not engaged in any conduct during the period of time that the certificate was in inactive or retired status that would constitute a reason to revoke or suspend the certificate pursuant to section 32-741.

(b) The board determines that good cause exists for the conduct.

B. An individual with a certificate status of canceled, who does not qualify for certification by reciprocity pursuant to section 32-721, subsection C, may request that the individual's certificate be reinstated if all of the following apply:

1. The registrant files an application for reinstatement on the form prescribed by the board and pays the reinstatement application fee pursuant to section 32-729.

2. The registrant submits proof that the registrant has satisfied continuing professional education requirements as prescribed by the board.

3. Either:

(a) The registrant affirms that the individual has not engaged in any conduct during the period of time that the certificate was in canceled status that would constitute a reason to suspend or revoke the certificate pursuant to section 32-741.

(b) The board determines that good cause exists for the conduct.

4. On board approval of reinstatement, pays the registration fee pursuant to section 32-729.

C. An individual with a certificate status of expired, relinquished or revoked may request that the individual's certificate be reinstated if the individual meets all the following requirements:

1. The requirements prescribed by subsection B, paragraphs 1, 2 and 4 of this section.

2. If prescribed by a board relinquishment or revocation order, presents satisfactory evidence from an accredited institution or a college or university that maintains standards comparable to those of an accredited institution that the individual has completed at least one hundred fifty semester hours of education as follows:

(a) At least thirty-six semester hours of accounting courses of which at least thirty semester hours are upper-level courses.

(b) At least thirty semester hours of accounting-related courses.

3. If prescribed by a board relinquishment or revocation order, presents evidence that the individual has retaken and passed the uniform certified public accountant examination.

4. Demonstrates through substantial evidence presented to the board that the individual is completely rehabilitated with respect to the conduct that was pending or outstanding at the time the certificate was relinquished or revoked or that occurred before or after the certificate expired. Demonstration of rehabilitation includes evidence of the following:

(a) The individual has not engaged in any conduct that, if the individual had been registered during the period the conduct occurred, would have constituted a basis for revocation or suspension pursuant to section 32-741.

(b) The individual's civil rights have been fully restored pursuant to statute or an applicable recognized judicial or gubernatorial order with respect to any criminal conviction that constitutes any part of the basis for the relinquishment or revocation or that occurred before or after the certificate expired.

(c) The individual has addressed or remedied any complaints, investigations or board-ordered requirements that were pending or outstanding at the time of expiration, relinquishment or revocation.

(d) The individual has made restitution as ordered by the board or by a court of competent jurisdiction as a result of the individual's violation of this chapter or rules adopted pursuant to this chapter.

(e) Other evidence of rehabilitation that the board deems appropriate.

D. Except as otherwise provided in subsection C of this section, the board may not issue a certificate to an individual whose certificate has been revoked until five years after the effective date of revocation. If the revocation is based only on section 32-741, subsection A, paragraph 1 or 2 and the criminal conviction is ultimately reversed on appeal, the board shall enter an order vacating the revocation.

E. An individual, sole proprietor or business organization whose firm registration has been canceled may request that the firm registration be reinstated if the individual, sole proprietor or business organization does all of the following:

1. Files an application for reinstatement on the form prescribed by the board and pays the reinstatement application fee pursuant to section 32-729.

2. Meets the requirements of section 32-731.

3. On board approval of reinstatement, pays the registration fee pursuant to section 32-729.

F. An individual, sole proprietor or business organization whose firm registration has expired or been relinquished or revoked may request that the firm registration be reinstated if the individual, sole proprietor or business organization meets all of the following requirements:

1. The requirements prescribed by subsection E of this section.

2. Demonstrates through substantial evidence presented to the board that the firm is completely rehabilitated with respect to the conduct that was pending or outstanding at the time the registration was relinquished or revoked or that occurred before or after the registration expired. Demonstration of rehabilitation includes evidence of the following:

(a) The firm or any owner of the firm has not engaged in any conduct that, if the firm had been registered during the period the conduct occurred, would have constituted a basis for revocation or suspension pursuant to section 32-741.

(b) The firm has addressed or remedied any complaints, investigations or board-ordered requirements that were pending or outstanding at the time of expiration, relinquishment or revocation.

(c) The firm has made restitution as ordered by the board or by a court of competent jurisdiction as a result of any violation of this chapter or rules adopted pursuant to this chapter.

(d) Other evidence of rehabilitation that the board deems appropriate.

Article 3 Regulation of Certified Public Accountants

§ 32-741 Revocation or suspension of certificate; disciplinary action; letter of concern

A. After notice and an opportunity for a hearing, the board may revoke or suspend any certificate granted under this chapter and may take disciplinary action concerning the holder of any certificate for any of the following causes:

1. Conviction of a felony under the laws of any jurisdiction or of the United States if civil rights have not been restored pursuant to title 13, chapter 9 or other applicable recognized judicial or gubernatorial order.

2. Conviction of any crime that has a reasonable relationship to the practice of accounting by a certified public accountant, including crimes involving accounting or tax violations, dishonesty, fraud, misrepresentation, embezzlement, theft, forgery, perjury or breach of fiduciary duty, regardless of whether civil rights have been restored.

3. Fraud or deceit in obtaining a certificate as a certified public accountant under this chapter.

4. Dishonesty, fraud or gross or continuing negligence in the practice of accounting.

5. Discipline to the holder of any certificate or other authority to practice or refusal to renew the certificate or other authority to practice as a certified public accountant by any other jurisdiction or foreign country for any cause other than failure to pay license or registration fees.

6. Violation of any of the provisions of this chapter, of title 44, chapter 12, article 13 or of any fraud provisions of the federal securities laws.

7. Final judgment in a civil action if the court makes findings of accounting violations, dishonesty, fraud, misrepresentation or breach of fiduciary duty.

8. Final judgment or order in a civil action or administrative proceeding if the court or agency makes findings of violations of any fraud provisions of the laws of any jurisdiction or federal securities laws.

9. Violation of any decision, order or rule issued or adopted by the board.

10. Suspension or revocation for cause of the right to practice before the federal securities and exchange commission or any other governmental body or agency or the public company accounting oversight board or its successor.

11. Offering or accepting commissions or contingency fees for services rendered for clients for whom attest services are also offered or rendered in the performance of the practice of accounting unless:

(a) The fee is fixed by a court or another public authority.

(b) In a tax matter, the fee is determined based on the results of a judicial proceeding or the finding of a governmental agency.

12. Failing to disclose to a client that the registrant has received or expects to receive a commission from a third party for any engagement, services or product sales involving services other than attest services.

13. Making any false or misleading statement or verification in support of an application for a certificate, registration or permit filed by another person.

14. Making a false or misleading statement:

(a) To the board or its designated agent.

(b) On a form required by the board.

(c) In written correspondence to the board.

15. Failing to respond in writing or furnish information in a timely manner to the board or its designated agent, if the information is legally requested by the board and is in the registrant's possession or control.

B. Pursuant to title 41, chapter 6, article 10, the board may summarily suspend the certificate of any certified public accountant pending proceedings for revocation or other disciplinary action on the receipt of either of the following:

1. A notice of conviction of any crime that has a reasonable relationship to the practice of accounting, including crimes involving accounting or tax violations, dishonesty, fraud, misrepresentation, embezzlement, theft, forgery, perjury or breach of fiduciary duty or of any felony.

2. A final judgment or order in a civil action or administrative proceeding in which the court or agency made findings of violations of any fraud provisions of the laws of any jurisdiction or federal securities laws.

C. The board may take disciplinary action against a holder of a certificate issued pursuant to this chapter who is practicing accounting even if the person is not representing to the public that the person is a certified public accountant and even if the person is practicing accounting in a firm that is not registered by the board.

D. The board may issue a letter of concern if, in the opinion of the board, there is insufficient evidence to support disciplinary action against the registrant, but the board believes, as a result of information ascertained during an investigation, that continuation of the activities that led to the investigation may result in future board action against the registrant. A registrant may file a response with the board within thirty days after receipt of a letter of concern. Letters of concern issued by the board and records kept by the board in connection with investigations leading to letters of concern are confidential and are not public records.

§ 32-741.01 Suspension for nonregistration; expiration of certificate or registration

A. The certificate or registration of any registrant who fails to timely register and pay the biennial registration fee as required by section 32-729 is automatically suspended without prior notice or a hearing.

B. A registrant whose certificate or registration is suspended shall not assume or use the CPA designation while the registrant's certificate or registration remains on suspended status.

C. A suspension under this section is vacated when the board has determined that the registrant has paid all past due fees and has satisfied all other requirements for renewal.

D. If the registrant fails to renew the registrant's certificate or registration within three months after the date of suspension, the certificate or registration expires.

§ 32-741.02 Suspension for noncompliance with continuing education requirements; expiration of certificate

A. After notice and an opportunity for a hearing, the board shall suspend the certificate of any registrant who fails to show proof of compliance with the continuing professional education requirements established by the board pursuant to section 32-730.

B. A registrant whose certificate is suspended shall not assume or use the CPA designation while the registrant's certificate remains on suspended status.

C. A suspension issued under this section is vacated when the board has determined that the registrant has complied with the continuing professional education requirements and has satisfied all other requirements for renewal.

D. If the registrant fails to meet the requirements of subsection C of this section within six months after the date of suspension, the certificate expires.

§ 32-742 Revocation or suspension of firm's registration; failure to renew or reinstate; reinstatement; relinquishment

After notice and an opportunity for a hearing, the board may revoke or suspend a firm's registration or may take disciplinary action for any of the causes enumerated in section 32-741, subsection A or for either of the following:

1. The relinquishment, revocation or suspension of any certificate issued by the board to any owner of the firm. This paragraph does not apply to a suspension for nonregistration pursuant to section 32-741.01.

2. The failure to comply with section 32-731, subsection E.

§ 32-742.01 Investigations

A. The board on its own motion, or on receiving a complaint or other information suggesting violations of this chapter or board rules, may conduct or direct an authorized committee to conduct an initial analysis which shall be completed before the board may open an investigation file pursuant to subsection B to determine whether reasonable cause exists to believe that there is a violation of this chapter or board rules. The board or its authorized committee may designate one or more persons of appropriate competence to assist the board in its initial analysis.

B. After an initial analysis if the board finds reasonable cause to believe there is a violation of this chapter or board rules, the board may direct that an investigation file be opened to determine if there is reasonable cause to institute disciplinary proceedings under this chapter. An investigation is not a prerequisite to disciplinary proceedings under this chapter if reasonable cause can be determined without an investigation.

C. To assist in the investigation, the board or an authorized committee may designate one or more persons of appropriate competence to be investigators. When completing an investigation, the investigator shall file a report with the board or an authorized committee. Based on the investigator's report, the board or authorized committee may request further investigation, hold voluntary investigative interviews, make appropriate recommendations for dismissal, letters of concern, consent orders or other disciplinary actions.

D. If the board does not find reasonable cause to believe that there is a violation of this chapter or board rules, the board shall close the investigation file.

§ 32-743 Hearings; judicial review

A. The board may initiate proceedings under this chapter, for cause, either on its own motion or a verified complaint pursuant to title 41, chapter 6, article 10.

B. A written notice stating the nature of the charge or charges against the holder of a certificate and the time and place of the hearing before the board on the charges shall be served not less than twenty days prior to the date of the hearing either personally or by mailing a copy of the notice, certified mail, to the address last known to the board.

C. If, after having been served with the notice of hearing, the person fails to appear at the hearing and defend, the board may proceed to hear evidence against the person and may enter such order as shall be justified by the evidence.

D. At all hearings the attorney general of this state, one of the attorney general's assistants or a special assistant designated by the attorney general shall appear and represent the board.

E. The decision of the board shall be by majority vote. Any person aggrieved by the decision may file a motion for a rehearing pursuant to title 41, chapter 6, article 10.

F. Except as provided in section 41-1092.08, subsection H, the board's final decision is subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-744 Ownership and custody of working papers and records

A. All statements, records, schedules, working papers and memoranda prepared by a registrant or a partner, shareholder, officer, director, member, manager or employee of a registrant incidental to or in the course of rendering professional services to a client while a registrant are and shall remain the property of the registrant, except:

1. In the case of an express agreement between the registrant and the client to the contrary.

2. The reports submitted by the registrant to the client.

3. Records that are part of the client's records.

B. Without the consent of the client or the client's personal representative or assignee, no statement, record, schedule, working paper or memorandum may be sold, transferred or bequeathed to anyone other than surviving partners, stockholders or members or new partners, new stockholders, new members of the firm or any combined or merged firm or successor in interest to the firm.

C. On request with reasonable notice, a registrant shall timely furnish to a client or former client:

1. A copy of the registrant's working papers, to the extent that the working papers include records that would ordinarily constitute part of the client's records and are not otherwise available to the client.

2. Any accounting or other records belonging to, or obtained from or on behalf of, the client that the registrant removed from the client's premises or received for the client's account. The registrant may make and retain copies of these documents if they form the basis for work done by the registrant.

D. A registrant or firm shall maintain all records pertaining to any legal action initiated against the registrant or firm for a period of three years after the resolution of the action. On request, the registrant or firm shall timely furnish all records pertaining to the legal action to the board. For the purposes of this subsection, "legal action" means any civil or criminal lawsuit or state, United States territory or federal administrative proceeding where the allegations against the registrant or firm are violations of accounting or auditing standards or that result from negligence, gross negligence or reckless conduct, dishonesty, fraud, misrepresentation, breach of fiduciary duty or the suspension or revocation of the right to practice before the federal securities and exchange commission, the internal revenue service or any other state, United States territory or federal agency.

E. Except as provided in subsection D of this section, this section does not require a registrant to keep any work paper beyond the period prescribed by any other applicable statute.

§ 32-745 Employment of persons by accountants

This chapter does not prevent a person from being employed by a certified public accountant or a firm of certified public accountants if the employed person does not sign reports or assume any responsibility for the conduct of the employer's professional practice.

§ 32-746 Fraudulent audit practices; classification

A. A person commits fraudulent audit practices if such person knowingly prepares, issues or offers or files with any public agency an audit report or certificate on any financial statement which is materially false or misleading or fraudulent, or which purports to fairly present the financial position, results of operations or changes in financial position of the person or entity reported on but fails to do so.

B. Fraudulent audit practices is a class 5 felony. Fraudulent audit practices in connection with any securities offering or involving the filing of financial statements in connection with securities is a class 4 felony.

§ 32-747 CPA designation; title; use; unlawful use

A. A registrant or an individual or firm that qualifies for the limited reciprocity privilege under section 32-725 shall be known as a certified public accountant or certified public accounting firm and may use the CPA designation with the exact name as registered with the board unless the status of the registrant, individual or firm is canceled, expired, suspended, relinquished or revoked.

B. An individual or firm when referring to accounting or accounting practices shall not assume or use the CPA designation unless the individual or firm is qualified pursuant to subsection A of this section.

C. This section does not apply to or affect or limit the right to continuous use of a firm name, or a modification of a firm name, by successor firms formed by the remaining owner or owners or added owner or owners even though the individuals whose names are included in the firm name are not owners, but the successor firm shall conform to all other provisions of this chapter. This section does not apply to or affect or limit the right to continuous use of a professional corporation's name as provided pursuant to this chapter or title 10, chapter 20 or a professional limited liability company's name pursuant to this chapter or title 29.

D. The displaying or uttering by a registrant or an individual or firm that qualifies for the limited reciprocity privilege under section 32-725 of any card, sign, advertisement or other printed, engraved or written instrument or device bearing a name and intended to be confused with the CPA designation is prima facie evidence in a prosecution, proceeding or hearing brought under this section that the registrant, individual or firm so displayed caused or procured the displaying or uttering of the card, sign, advertisement or other printed, engraved or written instrument or device.

E. A firm may not refer to itself as a CPA firm unless it has a simple majority of the ownership, in terms of direct and indirect financial interests and voting rights, that belongs to holders in good standing of certificates or licenses as certified public accountants in any jurisdiction.

§ 32-748 Board review; executive director's actions

A person who is aggrieved by an action taken by the executive director of the board pursuant to section 32-703, subsection B, paragraph 14 may request that the board review the action. The person shall file with the board a written request within thirty days after the date of the letter informing the person of the executive director's action. At the next regular board meeting, the board shall review the executive director's action and shall approve, modify or reject the action.

§ 32-749 Confidential nature of information acquired by accountants; privilege; conditions for disclosure; public records; exceptions

A. Certified public accountants practicing in this state shall not be required to divulge, nor shall they voluntarily divulge, client records or information they have received by reason of the confidential nature of their employment. Information derived from or as a result of a professional source shall be kept confidential as provided in this section, but this section does not modify, change or affect the criminal or bankruptcy laws of this state or the United States or limit the authority of this state or any agency of this state to subpoena and use the information in connection with any investigation, public hearing or other proceeding.

B. The board shall not require a registrant to disclose taxpayer information protected from disclosure by section 42-2069 or section 43-381 except as provided by those sections.

C. This section and section 32-744 do not prohibit the disclosure of information for:

1. Compliance with ethical investigations or practice monitoring programs conducted by the board or private professional organizations pursuant to programs preapproved by the board. These programs include, but are not limited to, quality and peer reviews. The scope of quality and peer reviews may include subsequent, remedial or corrective actions. Disclosure of information under this paragraph shall not destroy its confidentiality and privilege nor relieve any registrant of the obligation of confidentiality. The registrants to whom the information is provided shall be bound by this section.

2. Access by the board or its duly authorized agents or employees during business hours to examine and copy any documents, reports, records or other physical evidence of any person being investigated by the board on its own motion or as the result of a complaint received, if the documents, reports, records or evidence relates to the competence or professional conduct of the registrant who is being investigated.

D. Records the board maintains in exercising its statutory duties are presumed to be public records pursuant to title 39, chapter 1, article 2 and are generally accessible for inspection and copying. Exceptions to the public records presumption include investigations of registrants. The board shall treat as confidential information the complaint, the investigation report, the testimony and documents submitted in support of the complaint or gathered in the investigation, including information obtained pursuant to section 32-721, and any correspondence related to the complaint or investigation. After the initial analysis under section 32-742.01, if the board opens an investigation file on a complaint, the details and records of the complaint and investigation shall remain confidential. However the fact that a complaint or investigation is pending and the nature of the complaint shall be public. The board shall not disclose this confidential information to any person except law enforcement authorities and, to the extent deemed necessary to conduct the investigation, the subject of the investigation, persons whose complaints are being investigated and witnesses questioned in the course of the investigation. Except for client records or information and any information from which the client or the client's property may be identified, the information made confidential under this subsection becomes public record if the board institutes civil enforcement or disciplinary proceedings or issues a consent order in lieu of disciplinary proceedings. If the board dismisses the matter with no disciplinary action, the board may disclose the information relating to the matter only with the consent of the registrant or entity under investigation.

§ 32-750 Injunction against unlawful act

When in the judgment of the board any person has engaged, or is about to engage, in any acts or practices which constitute, or will constitute, a violation of section 32-747, the board may make application to the appropriate court for an order enjoining such acts or practices, and upon a showing by the board that such person has engaged, or is about to engage, in any such acts or practices, an injunction, restraining order, or such other order as may be appropriate shall be granted by such court without bond.

§ 32-751 Actions to recover civil penalties

The board may request the attorney general to bring an action in superior court to recover any administrative penalties imposed by the board pursuant to this chapter. An action to recover such penalties shall be brought in the county in which the board has its office, or in the county of residence or principal place of business of the person subject to the penalties.

Chapter 7 Podiatry

Article 1 Board of Podiatry Examiners

§ 32-801 Definitions

In this chapter, unless the context otherwise requires:

1. "Board" means the state board of podiatry examiners.

2. "Electrical treatment" means using electricity in diagnosing or treating an ailment of the foot or leg by electrodes, lights, rays, vibrators or a machine run by electricity.

3. "Leg" means that part of the lower limb between the knee and the foot.

4. "Letter of concern" means an advisory letter to notify a podiatrist that while there is insufficient evidence to support a disciplinary action the board believes the podiatrist should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in action against the podiatrist's license.

5. "License" means a license to practice podiatry.

6. "Manipulative treatment" means using the hand or machinery in treating the foot or leg.

7. "Mechanical treatment" means applying a mechanical appliance of whatever material to the foot or leg, or to the shoe or other footgear.

8. "Medical treatment" means recommending, prescribing or locally applying a therapeutic agent for relief of a foot or leg ailment.

9. "Podiatric medical assistant" means an unlicensed person who has completed an education program approved by the board, who assists in a podiatric medical practice under the supervision of a podiatrist and who performs delegated procedures commensurate with the assistant's education and training but who does not diagnose, interpret, design or modify established treatment programs or perform any functions that would violate any statute applicable to the practice of podiatric medicine.

10. "Podiatrist" is synonymous with podiatric physician and surgeon and means a person who, within the limits of this chapter, is registered and licensed to practice podiatry by means of performing full body physical examinations within the profession's scope of practice and diagnosing or medically, surgically, mechanically, manipulatively or electrically treating ailments of the human foot and leg but not amputating the leg or entire foot or administering an anesthetic other than local.

11. "Podiatry" is synonymous with chiropody and means diagnosing or medically, surgically, mechanically, manipulatively or electrically treating ailments of the human foot and leg but not amputating the leg or entire foot or administering an anesthetic other than local.

12. "Surgical treatment" means using a cutting instrument to treat an ailment of the foot or leg.

§ 32-802 State board of podiatry examiners; compensation; employees; immunity

A. The state board of podiatry examiners is established consisting of five members who are appointed by the governor. Each member shall be appointed for a term of five years, to begin and end on February 1.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. Three members of the board shall have practiced podiatry continuously in this state for not less than two years immediately preceding appointment and shall have valid licenses to practice podiatry. Two members of the board shall be lay persons. All members of the board shall be citizens of the United States.

D. A vacancy on the board occurring other than by the expiration of a term shall be filled by appointment by the governor for the unexpired term.

E. All appointments shall be made promptly, and in the case of the vacancy of a professional member or members, appointment shall be made no later than ninety days from the expiration of the term or vacancy.

F. The term of any member, at the discretion of the board, may end and the office be declared vacant for the member's failure to attend three consecutive meetings of the board.

G. Members of the board shall receive compensation of fifty dollars for each day of actual service in the business of the board.

H. Subject to title 41, chapter 4, article 4, the board may employ personnel, including trained investigators, as it deems necessary to carry out the purposes of this chapter.

I. Members and personnel of the board are personally immune from suit with respect to all acts done and actions taken in good faith and in furtherance of the purposes of this chapter.

§ 32-803 Organization; meetings

A. The board shall annually elect from its membership a president and a secretary at the annual meeting which shall be held in January.

B. The board shall meet at least twice each year at such times and places as it determines. Special meetings may be called by the president or any three members.

§ 32-804 Rule making powers

The board may adopt rules and regulations consistent with and necessary to carry out the provisions of this chapter.

§ 32-805 Secretary of board; duties

A. The secretary of the board shall receive compensation as determined pursuant to section 38-611.

B. The secretary shall:

1. Receive and disburse monies of the board.

2. Keep minutes of board meetings.

3. Keep a record of licenses issued, refused, suspended and revoked, and of applications for licensure.

4. Perform other duties the board prescribes.

§ 32-806 Podiatry fund

(L24, Ch. 222, sec. 7. Eff. until 7/1/28)

A. At the end of each calendar month, the board shall deposit, pursuant to sections 35-146 and 35-147, fifteen percent of all monies received by the board in the state general fund and the remaining eighty-five percent in the podiatry fund.

B. All monies deposited in the podiatry fund are subject to section 35-143.01.

§ 32-806 (Version 2) Podiatry fund

(L24, Ch. 222, sec. 8. Eff. 7/1/28)

A. At the end of each calendar month, the board shall deposit, pursuant to sections 35-146 and 35-147, ten percent of all monies received by the board in the state general fund and the remaining ninety percent in the podiatry fund.

B. All monies deposited in the podiatry fund are subject to section 35-143.01.

Article 2 Licensing

§ 32-821 Persons not required to be licensed

This chapter shall not apply to:

1. Commissioned physicians and surgeons, osteopaths and podiatrists of a United States military branch of service, public health or veterans administration personnel in the actual performance of their official duties.

2. Licensed physicians and surgeons, osteopaths, chiropractors or naturopaths while lawfully practicing their professions.

3. A visiting podiatrist called into consultation from a state in which he is qualified to practice podiatry.

4. A manufacturer of or dealer in shoes or corrective appliances for prevention, correction or relief of foot ailments, if such manufacturer or dealer is not engaged in the practice of podiatry.

5. A student of an accredited podiatry school whose standards are recognized by the American podiatry association who is engaged, in an official hospital-based or office-based externship or clerkship training program approved by the podiatry school and the board, in the actual performance of the student's duties.

6. A graduate of an accredited podiatry school whose standards are recognized by the American podiatry association who is engaged, in an official hospital-based internship or residency training program approved by the American podiatry association, in the actual performance of such internship or residency duties.

§ 32-822 Application for licensure

A. An applicant for a podiatry license shall file with the state board of podiatry examiners an application that is accompanied by the required fee on a form prescribed and furnished by the board. The application shall contain evidence of the applicant's necessary qualifications as the board requires and shall be signed and sworn to by the applicant.

B. An applicant for a license pursuant to section 32-827 shall file with the board an application for a license pursuant to section 32-827 that is accompanied by the required fee on a form prescribed and furnished by the board. The application shall contain evidence of the applicant's necessary qualifications as the board requires and shall be signed and sworn to by the applicant.

C. Each application submitted pursuant to this section shall contain the oath of the applicant that:

1. All of the information contained in the application and accompanying evidence or other credentials submitted is true and correct.

2. The credentials submitted with the application were procured without fraud or misrepresentation or any mistake of which the applicant is aware and that the applicant is the lawful holder of the credentials.

3. The applicant has read and understands the board's statutes and rules.

D. All applications, completed or otherwise, together with all attendant evidence, credentials and other proof submitted with the applications are the property of the board.

E. The board shall inform an applicant, promptly and in writing, of any deficiency existing in the application for licensure under this article that prevents the application from being processed.

F. An applicant who disagrees with the board's denial of a license shall be granted a hearing on request before the board at its next regular meeting. At any hearing granted pursuant to this subsection, the burden of proof is on the applicant to demonstrate that the alleged deficiencies that are the basis of the denial do not exist.

§ 32-823 Qualifications of applicant

A. An applicant shall prove to the board that the applicant:

1. Is a graduate of an accredited podiatry school whose standards are recognized by the American podiatry medical association.

2. Has the physical and mental capability to engage safely in the practice of podiatry.

3. Has a professional record that indicates that the applicant has not committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee under this chapter if the applicant has previously engaged in the practice of podiatry.

4. Has a professional record that indicates that the applicant has not had a license to practice podiatry refused, revoked, suspended or restricted in any way by any other state, federal jurisdiction or country for reasons that relate to the ability to competently and safely practice podiatry if the applicant has previously engaged in the practice of podiatry.

5. Has passed a national board written examination.

B. The board may require an applicant to submit such credentials or other evidence, written and oral, and may investigate as it deems necessary to adequately inform itself with respect to the applicant's ability to meet the requirements prescribed by this section, including a requirement that the applicant for licensure undergo a physical examination, a mental evaluation or an oral competence examination and interview, or any combination thereof, as the board deems proper.

C. Beginning September 1, 2022, an applicant for initial licensure, license renewal, license reinstatement or temporary licensure shall possess a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1.

§ 32-826 Issuance of license

A. The board shall issue a license to practice podiatry to every person who pays the required fee and furnishes satisfactory proof of successfully completing a thirty-six-month residency program.

B. Each license shall be signed by the president and secretary of the board and bear the seal of the board.

C. The board shall deny a license to an applicant who satisfies all of the licensing requirements of this article if that applicant does not submit the license issuance fee within twelve months after the date of application. An applicant who fails to submit the fee within this time shall reapply for licensure pursuant to this article.

§ 32-827 Comity

The board may issue a license to an applicant if the applicant has been licensed to practice podiatry in another state or country from which the applicant applies if:

1. The requirements in the other state or country, at the date of registration or licensing, were substantially equal to those then in force in this state.

2. The applicant has lawfully practiced podiatry in the other state or country for at least five years within the seven years immediately preceding the application for a license in this state.

3. The applicant complies with all other requirements set forth in this chapter for a license.

§ 32-829 Renewal or cancellation of license; change of address; continuing education

A. Except as provided in section 32-4301, a license to practice podiatry expires on June 30 of each year. To renew the license the licensee shall submit the renewal fee prescribed in section 32-830 and present evidence satisfactory to the board that in the year preceding the application for renewal the licensee attended at least twenty-five hours of board approved continuing education courses or programs. A licensee who does not renew a license on or before July 30 shall also pay a penalty fee as prescribed in section 32-830 for late renewal. The board shall cancel a license if the licensee does not renew it on or before August 31. A person who practices podiatry in this state after the person's license is cancelled is in violation of this chapter.

B. A person whose license is cancelled may reapply for a license to practice podiatry as provided in this chapter.

C. On written application the board may waive the requirement provided in subsection A of this section for those licensees who submit satisfactory proof that they were prevented from attending educational programs because of disability, military service or absence from the continental United States.

D. Each licensee shall promptly and in writing inform the board of the licensee's current office address and of each change in office address within thirty days.

E. If the board finds that an applicant for license renewal has not met the board's continuing education requirements, it may allow the licensee an additional sixty days to meet those requirements after which time the applicant is ineligible for license renewal.

§ 32-830 Fees

A. The board shall establish and collect fees not to exceed:

1. For initial application for licensure, which includes the initial registration to dispense drugs and devices, $1,000.

2. For application for a license pursuant to section 32-827 by a podiatrist from another state or country, which includes the initial registration to dispense drugs and devices, $500.

3. For issuing a license, $500.

4. For annual renewal of a license, which includes the annual renewal of registration to dispense drugs and devices, $500.

5. For certifying a licensed podiatrist to authorities of another state or country, $50.

6. For late renewal of a license after July 30 through August 31, $150.

B. The board may establish and collect fees for the following:

1. Providing a duplicate wallet card.

2. Providing a duplicate wall certificate.

3. Copying records, documents, letters, minutes, applications, files and policy statements.

4. Providing a licensee list.

5. Providing audio files.

Article 3 Regulation of Podiatrists

§ 32-851 Practicing podiatry without license prohibited

It is unlawful for a person to practice podiatry, or to hold himself out to be or assume or attempt to act as a podiatrist, without a valid unrevoked license to practice podiatry.

§ 32-852 Revocation or suspension of or refusal to issue license; civil penalty

A. The board, after notice and a hearing, may suspend, revoke or refuse to issue a license on proof against the applicant or licensee of any of the following:

1. That the applicant or licensee wilfully revealed a privileged communication except as required by law. This paragraph does not prevent members of the board from the full and free exchange of information with licensing and disciplinary boards of other states or jurisdictions of the United States, with foreign countries or with any podiatry society of this state or any other state, county, district, territory or country.

2. That the applicant or licensee knowingly made a false or fraudulent statement, written or oral, required for application or licensing or in connection with the practice of podiatry.

3. That the applicant or licensee had a professional association with or loaned the use of the applicant's or licensee's name to an unlicensed podiatrist or an illegal practitioner of any of the healing arts.

4. That the licensee violated a provision of section 32-854.

5. That the applicant or licensee is guilty of other conduct that disqualifies the applicant or licensee to practice podiatry with regard to the safety and welfare of the public.

6. That the licensee is guilty of unprofessional conduct as defined in section 32-854.01.

B. The board may impose against a licensee determined by the board to be in violation of this section a civil penalty of not more than two thousand dollars. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies it collects from civil penalties it imposes pursuant to this section in the state general fund.

§ 32-852.01 Investigations; duty to report; unprofessional conduct hearing; decision of board; appeal

A. The board on its own motion may investigate any evidence that appears to show that a podiatrist is or may be guilty of a violation of section 32-852. Any podiatrist or the Arizona podiatry association shall, or any other person may, report to the board any information the podiatrist, association or person may have that appears to show that a podiatrist is or may be guilty of unprofessional conduct or is or may be guilty of practice without regard for the safety and welfare of the public. A podiatrist conducting a medical examination pursuant to section 23-1026 is not subject to a complaint of unprofessional conduct based on a disagreement with the findings and opinions expressed by the podiatrist as a result of the examination. Any podiatrist, association, health care institution or other person that reports or provides information to the board in good faith is not subject to civil liability and the name of the reporter shall not be disclosed unless the information is essential to the investigative proceedings conducted pursuant to this section. It is an act of unprofessional conduct for any podiatrist to fail to report as required by this subsection. The chief executive officer, the medical director or the medical chief of staff of a health care institution shall inform the board if the privileges of a podiatrist to practice in that health care institution are denied, revoked, suspended or limited because of actions by the podiatrist that appear to show that the podiatrist is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to safely engage in the practice of podiatry, along with a general statement of the reasons, including patient chart numbers, that led the health care institution to take the action. The chief executive officer, the medical director or the medical chief of staff of a health care institution shall inform the board if a podiatrist under investigation resigns or if a podiatrist resigns in lieu of disciplinary action by the health care institution. Notification shall include a general statement of the reasons for the resignation, including patient chart numbers. The board shall inform all appropriate health care institutions in this state as defined in section 36-401 and the Arizona health care cost containment system administration of a resignation, denial, revocation, suspension or limitation, and the general reason for that action, without divulging the name of the reporting health care institution. A person who reports information in good faith pursuant to this subsection is not subject to civil liability.

B. Based on information received pursuant to subsection A of this section, the board may order a summary suspension of a license pending formal proceedings for license revocation or other disciplinary action if the board finds that the protection of the public health or safety requires emergency action. The board shall serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing before the board or an administrative law judge within sixty days.

C. If the board finds after completing its investigation that the information provided pursuant to subsection A of this section is not of sufficient seriousness to merit direct action against the license of the podiatrist, it may take any of the following actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. File a letter of concern.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

D. If the board finds after completing its investigation that the information is or may be true, the board may request an informal hearing with the licensee. If the licensee refuses the invitation or accepts the invitation and the results of the hearing indicate suspension or revocation of the license might be in order, the board shall issue a complaint and conduct a formal hearing pursuant to title 41, chapter 6, article 10. If the board finds at the informal hearing that the information provided under subsection A of this section is true but is not of sufficient seriousness to merit suspension or revocation of the license, it may take one or more of the following actions:

1. File a letter of concern.

2. Issue a decree of censure.

3. Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate the licensee. If a licensee fails to comply with the terms of probation the board may file a complaint and hold a formal hearing pursuant to this section.

4. Impose a civil penalty of not more than two thousand dollars for each violation. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies collected pursuant to this paragraph in the state general fund.

5. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

E. If the board believes that the charge is or may be true, the board shall serve on the licensee a summons and complaint that fully states the conduct or inability concerned and the time and place of the hearing. The board shall schedule the hearing not less than thirty days after the date of the summons and complaint.

F. The board may require that the licensee under investigation undergo any mental and physical examination and may conduct any investigation, including the taking of depositions, necessary to fully inform itself with respect to the complaint.

G. If the licensee wishes to be present at the hearing in person or by representation, or both, the licensee shall file with the board a written and verified answer to the charges within twenty days after service of the summons and complaint. A licensee who complies with this subsection may be present at the hearing with any witnesses of the licensee's choice.

H. The board may issue subpoenas for any witnesses, documents and other evidence it may need and for any witnesses, documents and other evidence the licensee may request. The superior court may hold a person who refuses to obey a subpoena in contempt of court.

I. Service of the summons and complaint shall be as provided for service of the summons and complaint in civil cases.

J. Service of subpoenas for witnesses shall be as provided by law for the service of subpoenas generally.

K. The board may administer the oath to all witnesses, shall keep a written transcript of all oral testimony submitted at the hearing and shall keep the original or a copy of all other evidence submitted. The board shall make copies of the transcript available to the licensee at that person's expense and without charge to the court in which the appeal may be taken. At all hearings the board may waive the technical rules of evidence.

L. A licensee who, after a hearing held pursuant to this section, is found to be guilty of a violation of section 32-852 or this section is subject to censure, probation as provided in this section, suspension of a license or revocation of a license, or any combination of these, for a period of time or permanently and under any conditions the board deems appropriate for the protection of the public health and safety and just in the circumstances. The board may file a letter of concern if it finds that the violation is not of sufficient seriousness to merit censure, probation or suspension or revocation of a license. The board may also issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

M. Patient records, including clinical records, medical reports, laboratory statements and reports, any file, film, other report or oral statement relating to diagnostic findings or treatment of patients, any information from which a patient or the patient's family might be identified or information received and records kept by the board as a result of the investigation procedure outlined in this chapter are not available to the public.

N. Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

O. This section and any other law relating to a privileged communication do not apply to investigations or proceedings conducted pursuant to this chapter. The board and its employees, agents and representatives shall keep in confidence the names of any patients whose records are reviewed during the course of investigations and proceedings pursuant to this chapter.

P. If the board acts to modify any podiatrist's prescription writing privileges, it shall immediately notify the state board of pharmacy of the modification.

Q. A letter of concern is a public document and may be used in future disciplinary actions against a podiatrist.

§ 32-853 Certain acts exempt from chapter

Nothing in this chapter shall prohibit the fitting, recommending, advertising, adjusting or sale of appliances, foot remedies or foot gear by retail dealers or manufacturers, provided that they shall not be made or fabricated by means of plaster casts or molds or by any other means for specific individual persons except on the prescription of a licensed podiatrist or physician.

§ 32-854 Unauthorized practice

A license to practice podiatry shall not be issued to a corporation, partnership or association, but two or more licensed podiatrists may occupy and practice in the same office space.

§ 32-854.01 Unprofessional conduct

Unprofessional conduct includes the following conduct, whether it occurs in this state or elsewhere:

1. Requesting, listing, accepting or receiving any rebate or commission for prescribing or recommending any footwear, drug, medicine, or other article to the licensee's patients.

2. Prescribing, dispensing or pretending to use, in treating any patient, any secret remedial agent, or manifesting or promoting its use in any way, or guaranteeing or implying to guarantee any treatment, therapy or remedy.

3. Representing that a disease or infirmity can be permanently cured, or that any disease, ailment or infirmity can be cured by a secret method, procedure, treatment, medicine or device, if this is not true.

4. Practicing podiatry under a trade name, under the name of another podiatrist, under any other name than that which appears on the practitioner's license, or under any title that misrepresents the practice of podiatry.

5. Advertising in a false, deceptive or misleading manner or advertising the quality of podiatric service.

6. Employing a solicitor to obtain business.

7. Fee splitting under any guise whatsoever.

8. Failing to report as required in section 32-852.01, subsection A.

9. Failing to obtain written informed consent from a patient before the licensee performs any surgical procedure on the patient.

10. Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by any court of competent jurisdiction is conclusive evidence that the licensee committed the crime.

11. Failing or refusing to maintain adequate records on:

(a) A patient who is eighteen years of age or older for at least six years.

(b) A patient who is under eighteen years of age for the later of either:

(i) Three years after the patient's eighteenth birthday.

(ii) Six years after the last date the patient received medical or health care services from the licensee.

12. Failing or refusing to make a patient's records available to a physician or another podiatrist within twenty-one days after a request and the receipt of proper authorization.

13. Habitual intemperance in the use of alcohol or habitual substance abuse.

14. Using controlled substances or prescription-only drugs except if provided by a physician for use during a prescribed lawful course of treatment.

15. Prescribing controlled substances to members of the podiatrist's immediate family.

16. Providing any controlled substance or prescription-only drug for other than accepted therapeutic purposes.

17. Dispensing a schedule II controlled substance that is an opioid, except as provided in section 32-3248.03.

18. Committing gross malpractice, repeated malpractice or any malpractice resulting in the death of a patient.

19. Refusing to divulge to the board on demand the means, method, procedure, modality of treatment or medicine used in treating a disease, injury, ailment or infirmity.

20. Violating any federal or state law applicable to the practice of podiatry.

21. Having the licensee's license refused, revoked or suspended by any other licensing jurisdiction for inability to safely and skillfully practice podiatry or for unprofessional conduct as defined by that jurisdiction that directly or indirectly corresponds to any act of unprofessional conduct as prescribed by this section or any act under section 32-852.

22. Committing any conduct or practice that is or might be harmful or dangerous to the health of a patient.

23. Violating any formal order, probation or stipulation issued by the board pursuant to this chapter.

24. Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any provision of this chapter.

25. Charging or collecting a clearly excessive fee. In determining the reasonableness of a fee, the fee customarily charged in the locality for similar services shall be considered in light of modifying factors, such as the time required, the complexity of the service and the skill requisite to perform the service properly. This paragraph does not apply if there is a clear written contract for a fixed fee between the podiatrist and the patient that has been entered into before the licensee provides the service.

26. Obtaining a fee by fraud, deceit or misrepresentation.

27. Charging a fee for services not rendered.

28. Failing to dispense drugs and devices in compliance with article 4 of this chapter.

§ 32-855 Violations; classification; injunctive relief

A. A person is guilty of a class 5 felony who:

1. Practices or advertises or holds himself out as practicing or entitled to practice podiatry, or who in a sign or advertisement uses the term "chiropodist", "foot specialist", "podiatrist" or "practapedist" or any other term or letter indicating or implying that the person practices podiatry or foot correction, without having at the time a valid unrevoked license to practice podiatry.

2. Otherwise violates this chapter.

B. The superior court is vested with jurisdiction to restrain any actual or threatened violation of this chapter by an action filed by the board in the county where the cause of action arises.

§ 32-856 Podiatric medical assistants; rules

A podiatric medical assistant may assist a podiatrist pursuant to rules adopted by the board.

Article 4 Dispensing of Drugs and Devices

§ 32-871 Dispensing of drugs and devices; conditions; civil penalty; definition

A. A podiatrist may dispense drugs, except schedule II controlled substances that are opioids, and devices kept by the podiatrist if:

1. All drugs are dispensed in packages labeled with the following information:

(a) The dispensing podiatrist's name, address and telephone number.

(b) The date the drug is dispensed.

(c) The patient's name.

(d) The name and strength of the drug, directions for its use and any cautionary statements.

2. The dispensing podiatrist enters into the patient's medical record the name and strength of the drug dispensed, the date the drug is dispensed and the therapeutic reason.

3. The dispensing podiatrist keeps all drugs in a locked cabinet or room, controls access to the cabinet or room by a written procedure and maintains an ongoing inventory of its contents.

B. Except in an emergency situation, a podiatrist who dispenses drugs for a profit without being registered by the board to do so is subject to a civil penalty by the board of not less than three hundred dollars and not more than one thousand dollars for each transaction and is prohibited from further dispensing for a period of time as prescribed by the board.

C. Before dispensing a drug pursuant to this section, the patient shall be given a written prescription on which appears the following statement in bold type: "This prescription may be filled by the prescribing podiatrist or by a pharmacy of your choice."

D. A podiatrist shall dispense for profit only to the podiatrist's own patient and only for conditions being treated by that podiatrist. The podiatrist shall provide direct supervision of a nurse or attendant involved in the dispensing process. For the purposes of this subsection, "direct supervision" means that a podiatrist is present and makes the determination as to the legitimacy or the advisability of the drugs or devices to be dispensed.

E. This section shall be enforced by the board, which shall establish rules regarding labeling, recordkeeping, storage and packaging of drugs that are consistent with the requirements of chapter 18 of this title. The board may conduct periodic inspections of dispensing practices to ensure compliance with this section and applicable rules.

F. For the purposes of this section, "dispense" means the delivery by a podiatrist of a prescription drug or device to a patient, except for samples packaged for individual use by licensed manufacturers or repackagers of drugs, and includes the prescribing, administering, packaging, labeling and security necessary to prepare and safeguard the drug or device for delivery.

Chapter 8 Chiropractic

Article 1 Board of Chiropractic Examiners

§ 32-900 Definitions

In this chapter, unless the context otherwise requires:

1. "Advisory letter" means a nondisciplinary letter to notify a licensee that either:

(a) While there is insufficient evidence to support disciplinary action, the board believes that continuation of the activities that led to the investigation may result in further board action against the licensee.

(b) The violation is a minor or technical violation that is not of sufficient merit to warrant disciplinary action.

(c) The violation is a minor or technical violation, and while the licensee has demonstrated substantial compliance through rehabilitation or remediation that has mitigated the need for disciplinary action, the board believes that repetition of the activities that led to the investigation may result in further board action against the licensee.

2. "Board" means the state board of chiropractic examiners.

3. "Certification" means that a doctor of chiropractic has been certified by the board in a specialty of chiropractic as provided by law.

4. "Chiropractic assistant" means an unlicensed person who has completed an educational training program approved by the board, who assists in basic health care duties in the practice of chiropractic under the supervision of a doctor of chiropractic and who performs delegated duties commensurate with the chiropractic assistant's education and training but who does not evaluate, interpret, design or modify established treatment programs of chiropractic care or violate any statute.

5. "Doctor of chiropractic" means a natural person who holds a license to practice chiropractic pursuant to this chapter.

6. "License" means a license to practice chiropractic.

7. "Physical medicine modalities" means any physical agent applied to produce therapeutic change to biologic tissues, including thermal, acoustic, noninvasive light, mechanical or electric energy, hot or cold packs, ultrasound, galvanism, microwave, diathermy and electrical stimulation.

8. "Therapeutic procedures" means the application of clinical skills and services, including therapeutic exercise, therapeutic activities, manual therapy techniques, massage and structural supports, to improve a patient's neuromusculoskeletal condition.

§ 32-901 Board of chiropractic examiners; removal; immunity

A. The state board of chiropractic examiners is established consisting of three licensed chiropractors and two consumer members who are appointed by the governor. One member shall be appointed each year for a term of five years, to begin and end on July 1.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. Each member of the board shall be a resident of this state, and each of the licensed chiropractic members shall have practiced chiropractic in this state for three years or more. The two consumer members of the board shall not be in any manner connected with, or have an interest in, any college or school of chiropractic or any person practicing any form of healing or treatment of bodily or mental ailments. A board member shall not receive compensation as an agent or employee of or a contractor for an insurance company. This subsection does not prevent a board member who is a licensed chiropractor from receiving compensation from an insurance company for patient care as provided for in a patient's insurance policy.

D. Before taking office, each board member shall take an oath prescribed by law and shall affirm by oath that the board member meets the qualifications as prescribed in this section.

E. The governor may remove board members for neglect of duty, malfeasance or misfeasance in office. Vacancies occurring on the board other than by expiration of a term shall be filled for the unexpired portion of the term by appointment in the same manner as regular appointments.

F. A member of the board may not serve more than two consecutive terms.

G. A board member who acts within the board member's authority is personally immune from civil liability with respect to all actions taken in good faith pursuant to this chapter.

§ 32-902 Organization; meetings

A. The board shall annually elect from its membership a chairman and vice-chairman.

B. The board shall hold regular meetings at such places as it determines in January and July of each year, and may hold other meetings at times and places determined by a majority of the board. The board shall notify the public of such dates, time and place of meetings at least twenty-four hours prior to any meeting as provided by law. Meetings of the board shall be open to the public as provided by law.

C. A majority of the members of the board shall constitute a quorum and a majority vote of a quorum present at any meeting shall govern all actions taken by the board, except that licenses shall be issued pursuant to this chapter only upon the vote of a majority of the full board.

§ 32-903 Compensation

The salary of the executive director shall be as determined pursuant to section 38-611. The members of the board shall receive compensation in the amount of one hundred dollars for each day of actual service in the business of the board and are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

§ 32-904 Powers and duties

A. The board may administer oaths, summon witnesses and take testimony on matters within its powers and duties.

B. The board shall:

1. Adopt a seal, which shall be affixed to licenses issued by the board.

2. Adopt rules that are necessary and proper for the enforcement of this chapter.

3. Adopt rules regarding chiropractic assistants who assist a doctor of chiropractic, and the board shall determine the qualifications and regulation of chiropractic assistants who are not otherwise licensed by law.

4. At least once each fiscal year and before establishing the amount of a fee for the subsequent fiscal year, review the amount of each fee authorized in this chapter in a public hearing.

C. A copy of the rules shall be filed with the secretary of state upon adoption as provided by law.

§ 32-905 Executive director of board; duties; other personnel; immunity

A. Subject to title 41, chapter 4, article 4, the board shall appoint an executive director who is not a member of the board and who shall serve at the pleasure of the board.

B. The executive director shall:

1. Keep a record of the proceedings of the board.

2. Collect all monies due and payable to the board.

3. Deposit, pursuant to sections 35-146 and 35-147, all monies received by the board in the board of chiropractic examiners fund.

4. Prepare bills for authorized expenditures of the board and obtain warrants from the director of the department of administration for payment of bills.

5. Administer oaths.

6. Act as custodian of the seal, books, minutes, records and proceedings of the board.

7. At the request of the board, do and perform any other duty not prescribed for the executive director elsewhere in this chapter.

C. Subject to title 41, chapter 4, article 4, the board may employ other personnel as it deems necessary to carry out the purposes of this chapter.

D. The executive director and a person acting pursuant to the executive director's direction is personally immune from civil liability for all actions taken in good faith pursuant to this chapter.

§ 32-906 Board of chiropractic examiners fund

(L24, Ch. 222, sec. 9. Eff. until 7/1/28)

A. All monies, except civil penalties collected pursuant to section 32-924, that are received by the board shall be deposited monthly. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of the monies in the state general fund and deposit the remaining eighty-five percent in the board of chiropractic examiners fund. All monies that are derived from civil penalties collected pursuant to section 32-924 shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

B. Monies that are deposited in the board of chiropractic examiners fund are subject to section 35-143.01.

§ 32-906 (Version 2) Board of chiropractic examiners fund

(L24, Ch. 222, sec. 10. Eff. 7/1/28)

A. All monies, except civil penalties collected pursuant to section 32-924, that are received by the board shall be deposited monthly. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of the monies in the state general fund and deposit the remaining ninety percent in the board of chiropractic examiners fund. All monies that are derived from civil penalties collected pursuant to section 32-924 shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

B. Monies that are deposited in the board of chiropractic examiners fund are subject to section 35-143.01.

§ 32-907 Additional fees

In addition to charging the fees and making the refunds provided by this chapter, the board may charge fees for services requested but not required to be provided by this chapter and for applications, certifications, license issuances, renewals and reinstatements and preceptor filings.

Article 2 Licensing and Regulation

§ 32-921 Application for license; qualifications of applicant; fee; background investigations

A. A person who wishes to practice chiropractic in this state shall submit a complete application to the board at least forty-five days before the next scheduled examinations on a form and in the manner prescribed by the board.

B. To be eligible for an examination and licensure, the applicant shall:

1. Be a graduate of a chiropractic college that both:

(a) Is accredited by or has status with the council on chiropractic education or is accredited by an accrediting agency recognized by the United States department of education or the council on postsecondary accreditation.

(b) Teaches a resident course of four years of not less than nine months each year, or the equivalent of thirty-six months of continuous study, and that comprises not less than four thousand credit hours of resident study required to receive a degree of doctor of chiropractic (D.C.).

2. Be physically and mentally able to practice chiropractic skillfully and safely.

3. Have a certificate of attainment for part I and part II and a score of three hundred seventy-five or more on part III or IV of the examination conducted by the national board of chiropractic examiners.

C. The board may refuse to give an examination or may deny licensure to an applicant who:

1. Fails to qualify for an examination or licensure under subsection B of this section.

2. Has had a license to practice chiropractic refused, revoked, suspended or restricted by a regulatory board in this or any other jurisdiction for any act that constitutes unprofessional conduct pursuant to this chapter.

3. Is currently under investigation by a regulatory board in this or any other jurisdiction for an act that constitutes unprofessional conduct pursuant to this chapter.

4. Has surrendered a license to practice chiropractic in lieu of disciplinary action by a regulatory board in this or any other jurisdiction for an act that constitutes unprofessional conduct pursuant to this chapter.

5. Has engaged in any conduct that constitutes grounds for disciplinary action pursuant to section 32-924 or board rules.

D. On applying, the applicant shall pay to the executive director of the board a nonrefundable fee of not more than $325 as established by the board. The board shall keep a register of all applicants and the result of each examination.

E. In order to determine an applicant's eligibility for examination and licensure, the board may require the applicant to submit a full set of fingerprints to the board. The board shall submit the fingerprints to the department of public safety for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation. The board shall charge each applicant a fee that is necessary to cover the cost of the investigation. The board shall forward this fee to the department of public safety.

§ 32-922 Examinations; licensure

A. The examination for a license to practice chiropractic required of applicants shall be conducted at a time and place designated by the board at least semiannually. Each applicant to be examined shall first file a completed application found to be true and correct and shall be given at least twenty days' written notice of the time and place of the examination.

B. The examination shall be in English, practical in character and designed to include subjects that are necessary to ascertain the applicant's knowledge of and fitness to practice chiropractic safely and skillfully as authorized in this state. Examinations shall include material relating to chiropractors and Arizona jurisprudence and the following subjects as taught by accredited chiropractic colleges:

1. Anatomy.

2. Physiology.

3. Pathology.

4. Bacteriology.

5. Symptomatology.

6. Diagnosis, including physical, clinical, x-ray and laboratory subjects.

7. Chiropractic orthopedics.

8. Principles of chiropractic and adjusting.

9. Neurology.

10. Chemistry, including biochemistry and nutrition.

11. Public health and hygiene.

12. Chiropractic spinal analysis.

C. The board may waive examination in those subjects that the applicant passed previously with the percentage of correct answers prescribed in subsection D of this section in an examination conducted by the national board of chiropractic examiners.

D. The board shall grant a license to an applicant who meets all of the following requirements:

1. Correctly answers at least seventy-five percent of all questions asked on the subjects identified in subsection B of this section or attains a board approved passing score on all questions asked on the subjects identified in subsection B of this section in an examination administered by a board approved testing facility.

2. Correctly answers at least seventy-five percent of the questions on jurisprudence.

3. Meets all other licensing requirements of this chapter.

4. Pays the original license fee of not more than one hundred twenty-five dollars as established by the board.

E. An applicant who fails the examination for the first time may retake the examination within one year if the applicant submits an updated application that meets the requirements of section 32-921.

F. An applicant shall reapply for licensure if the applicant does not pay the original license fee within one year after having been notified by the board that the applicant is eligible to receive a license.

§ 32-922.01 Reciprocity; requirements

A. The board shall issue a license to practice chiropractic under this section to an applicant who meets the following requirements:

1. Holds a current license to practice chiropractic issued after examination by a licensing board in another state or country in which, in the opinion of the board, the licensing requirements are at least substantially equivalent to those of this state and the other state or country grants similar reciprocal privileges to chiropractors licensed in this state.

2. Receives a grade of at least seventy-five per cent on the Arizona jurisprudence examination.

3. Pays the original license fee of one hundred dollars.

B. The applicant shall pay the application fee prescribed by section 32-921 and present proof satisfactory to the board that:

1. A license issued by any other state has not been sanctioned for any cause that is a basis of a sanction imposed by the board pursuant to this chapter, except for failure to pay fees.

2. The applicant has not previously failed to pass the examination in this state.

3. The applicant has been engaged in the practice of chiropractic continuously for not less than three of the five years immediately preceding the application.

§ 32-922.02 Specialties; certification; fees

A. In order to practice a chiropractic specialty a licensee shall be certified in that specialty by the board.

B. An applicant who wishes to be certified to perform acupuncture shall submit the following to the board:

1. Documentation of successful completion of a minimum of one hundred hours of study in acupuncture at an accredited chiropractic college or postgraduate study with an instructor on the active or postgraduate staff of an accredited chiropractic college.

2. A complete application as prescribed by the board.

3. Documentation of having passed a board-approved acupuncture examination.

C. An applicant who wishes to be certified to perform physical medicine modalities and therapeutic procedures shall submit the following to the board:

1. A complete application as prescribed by the board.

2. Documentation of successful completion of a minimum of one hundred twenty hours of study in physical medicine modalities and therapeutic procedures at an accredited chiropractic college or postgraduate study with an instructor on the active or postgraduate staff of an accredited chiropractic college.

3. Documentation of having passed an examination in physical medicine modalities and therapeutic procedures that is approved by the board.

D. The board shall issue a certificate to any applicant who meets the requirements of this section, who correctly answers at least seventy-five percent of all questions asked on the specialty examination and who pays a certificate fee of not more than one hundred twenty-five dollars as established by the board.

E. On making application, the applicant shall pay to the executive director of the board a nonrefundable fee of not more than one hundred twenty-five dollars as established by the board. The board shall keep a register of all applicants and the result of each examination.

F. A chiropractor who is certified to perform physiotherapy before July 29, 2010 is deemed to be certified in physical medicine modalities and therapeutic procedures.

§ 32-922.03 Licensure by endorsement; requirements

A. The board may issue a license to practice chiropractic pursuant to this chapter by endorsement to an applicant who meets all of the following requirements:

1. Has actively practiced chiropractic in another state or jurisdiction for at least five of the immediately preceding seven years.

2. Has not had an adverse disciplinary action taken against a professional license issued by another state or jurisdiction.

3. Receives a grade of at least seventy-five percent on the Arizona jurisprudence examination.

4. On making application, pays to the executive director of the board a nonrefundable fee of not more than five hundred dollars as established by the board.

5. Pays the original license fee as prescribed by section 32-922.

B. The applicant shall present proof satisfactory to the board that:

1. A professional license of the applicant issued by any other state or jurisdiction has not been sanctioned for any cause that may be a basis of a sanction imposed by the board pursuant to this chapter, except for failure to pay fees.

2. The applicant has not previously failed to pass the examination in this state.

3. The applicant qualifies for licensure as prescribed in section 32-921, except the applicant is not required to submit proof of obtaining a passing score on part III or IV of the examination conducted by the national board of chiropractic examiners.

C. An applicant under this section is not required to pay the fee prescribed in section 32-921, subsection D.

§ 32-923 Change of address; annual renewal fee; failure to renew; waivers; definition

A. Every person who is licensed pursuant to this chapter shall notify the board in writing of any change in residence or office address and telephone number within thirty days after that change. The board shall impose a penalty of $50 on a licensee who does not notify the board as required by this subsection.

B. Except as provided in section 32-4301, every person who is licensed to practice chiropractic in this state shall annually make a renewal application to the board before the last day of the licensee's birth month after original issuance of a license and shall pay a renewal license fee of not more than $225 as established by the board. The renewal application shall be made on a form and in a manner prescribed by the board. At least thirty days before the renewal application and renewal fee are due, the board shall send by first class mail a renewal application and notice requiring license renewal and payment of the renewal fee.

C. The board shall administratively suspend a license automatically if the licensee does not submit a complete application for renewal and pay the renewal license fee as required by this section.

D. The board may reinstate a license if the person completes an application for reinstatement as prescribed by the board, complies with the continuing education requirements for each year that the license was suspended, pays the annual renewal license fee for each year that the license was suspended and pays an additional fee of $200. An applicant who does not request reinstatement within two years after the date of suspension shall apply for a license as a new candidate pursuant to section 32-921 or 32-922.01.

E. The board may waive the annual renewal license fee if a licensee presents evidence satisfactory to the board that the licensee has permanently retired from the practice of chiropractic and has paid all fees required by this chapter before the waiver.

F. During the period of waiver the retired licensee shall not engage in the practice of chiropractic. A violation of this subsection subjects the retired licensee to the same penalties as are imposed in this chapter on a person who practices chiropractic without a license.

G. The board may reinstate a retired licensee to active practice on payment of the annual renewal license fee and presentation of evidence satisfactory to the board that the retired licensee is professionally able to engage in the practice of chiropractic and still possesses the professional knowledge required. After a hearing, the board may refuse to reinstate a retired licensee to active practice under this subsection on any of the grounds prescribed in section 32-924.

H. For the purposes of this section, "administratively suspend" means a nondisciplinary action that is imposed for failure to renew a license and that requires the licensee to suspend practice until renewal requirements are met.

§ 32-924 Grounds for disciplinary action; hearing; civil penalty; definition

A. The following are grounds for disciplinary action, regardless of where they occur:

1. Employment of fraud or deception in securing a license.

2. Practicing chiropractic under a false or assumed name.

3. Impersonating another practitioner.

4. Habitual use of alcohol, narcotics or stimulants to the extent of incapacitating the licensee for the performance of professional duties.

5. Unprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession.

6. Conviction of a misdemeanor involving moral turpitude or of a felony.

7. Gross malpractice, repeated malpractice or any malpractice resulting in the death of a patient.

8. Representing that a manifestly incurable condition can be permanently cured, or that a curable condition can be cured within a stated time, if this is not true.

9. Offering, undertaking or agreeing to cure or treat a condition by a secret means, method, device or instrumentality.

10. Refusing to divulge to the board on demand the means, method, device or instrumentality used in the treatment of a condition.

11. Giving or receiving or aiding or abetting the giving or receiving of rebates, either directly or indirectly.

12. Acting or assuming to act as a member of the board if this is not true.

13. Advertising in a false, deceptive or misleading manner.

14. Having had a license refused, revoked or suspended by any other state or country, unless it can be shown that the action was not taken for reasons that relate to the ability to safely and skillfully practice chiropractic or to any act of unprofessional conduct.

15. Any conduct or practice contrary to recognized standards in chiropractic or any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public or any conduct, practice or condition that impairs the ability of the licensee to safely and skillfully practice chiropractic.

16. Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any of the provisions of this chapter or any board order.

17. Failing to sign the physician's name, wherever required, in any capacity as "chiropractic doctor", "chiropractic physician" or "doctor of chiropractic" or failing to use and affix the initials "D.C." after the physician's name.

18. Failing to place or cause to be placed the word or words "chiropractic", "chiropractor", "chiropractic doctor" or "chiropractic physician" in any sign or advertising media.

19. Using physical medicine modalities and therapeutic procedures without passing an examination in that subject and without being certified in that specialty by the board.

20. Using acupuncture without passing an examination in that subject and without being certified in that specialty by the board.

21. Engaging in sexual intercourse or oral sexual contact with a patient in the course of treatment.

22. Billing or otherwise charging a patient or third-party payor for services, appliances, tests, equipment, an x-ray examination or other procedures not actually provided.

23. Intentionally misrepresenting to or omitting a material fact from the patient or third-party payor concerning charges, services, appliances, tests, equipment, an x-ray examination or other procedures offered or provided.

24. Advertising chiropractic services, appliances, tests, equipment, x-ray examinations or other procedures for a specified price without also specifying the services, procedures or items included in the advertised price.

25. Advertising chiropractic services, appliances, tests, equipment, x-ray examinations or other procedures as free without also disclosing what services or items are included in the advertised service or item.

26. Billing or charging a patient or third-party payor a higher price than the advertised price in effect at the time the services, appliances, tests, equipment, x-ray examinations or other procedures were provided.

27. Advertising a specialty or procedure that requires a separate examination or certificate of specialty, unless the licensee has satisfied the applicable requirements of this chapter.

28. Solicitation by the licensee or by the licensee's compensated agent of any person who is not previously known by the licensee or the licensee's agent, and who at the time of the solicitation is vulnerable to undue influence, including any person known to have experienced any of the following within the last fifteen days:

(a) Involvement in a motor vehicle accident.

(b) Involvement in a work-related accident.

(c) Injury by, or as the result of actions of, another person.

B. The board on its own motion or on receipt of a complaint may investigate any information that appears to show that a doctor of chiropractic is or may be in violation of this chapter or board rules or is or may be mentally or physically unable to safely engage in the practice of chiropractic. The board shall notify the licensee as to the content of the complaint as soon as is reasonable. Any person who reports or provides information to the board in good faith is not subject to civil damages as a result of that action.

C. The board may require a licensee under investigation pursuant to this section to be interviewed by the board or its representatives. The board may require a licensee who is under investigation pursuant to this section to undergo, at the licensee's expense, any combination of medical, physical or mental examinations that the board finds necessary to determine the licensee's competence.

D. If the board finds based on the information it receives under subsections B and C of this section that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the board may order a summary suspension of a license pending proceedings for revocation or other action. If the board takes this action, it shall also serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing within sixty days.

E. If, after completing its investigation, the board finds that the information provided pursuant to this section is not of sufficient seriousness to merit disciplinary action against the licensee, it may take any of the following actions:

1. Dismiss the complaint if in the board's opinion the information is without merit or does not warrant sanction of the licensee.

2. Issue an advisory letter. An advisory letter is a nondisciplinary action and is a public document.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment. Failure to complete a nondisciplinary order requiring continuing education is a violation of subsection A, paragraph 16 of this section.

F. The board may request a formal interview with the licensee concerned. At a formal interview the board may receive and consider pertinent documents and sworn statements of persons who may be called as witnesses in a formal hearing. Legal counsel may be present and participate in the formal interview. If the licensee refuses the request or if the licensee accepts the request and the results of the interview indicate suspension or revocation of the license may be in order, the board shall issue a complaint and order that a hearing be held pursuant to title 41, chapter 6, article 10. If, after the formal interview, the board finds that the information provided pursuant to this section is true but is not of sufficient seriousness to merit suspension or revocation of the license, it may take any of the following actions:

1. Dismiss the complaint if in the board's opinion the information is without merit or does not warrant sanction of the licensee.

2. Issue an advisory letter. An advisory letter is a nondisciplinary action and is a public document.

3. Issue an order to cease and desist.

4. Issue a letter of concern.

5. Issue an order of censure. An order of censure is an official action against the licensee and may include a requirement for restitution of fees to a patient resulting from a violation of this chapter or board rules.

6. Fix a period and terms of probation best adapted to protect the public health and safety and to rehabilitate or educate the licensee. Any costs incidental to the terms of probation are at the licensee's own expense. Probation may include restrictions on the licensee's license to practice chiropractic.

7. Impose a civil penalty of not more than one thousand dollars for each violation of this chapter.

8. Refuse to renew a license.

9. Issue a disciplinary or nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

G. If the board believes the charge is of such magnitude as to warrant suspension or revocation of the license, the board shall immediately initiate formal revocation or suspension proceedings pursuant to title 41, chapter 6, article 10. The board shall notify a licensee of a complaint and hearing by certified mail addressed to the licensee's last known address on record in the board's files. The notice of a complaint and hearing is effective on the date of its deposit in the mail. The board shall hold a formal hearing within one hundred eighty days after that date.

H. If the licensee wishes to be present at the formal hearing in person or by representation, or both, the licensee shall file with the board a written answer to the charges in the complaint. A licensee who has been notified of a complaint pursuant to this section shall file with the board a written response not more than twenty days after service of the complaint and the notice of hearing. If the licensee fails to file an answer in writing, it is deemed an admission of the act or acts charged in the complaint and notice of hearing and the board may take disciplinary action pursuant to this chapter without a hearing.

I. Any licensee who, after a hearing, is found to be in violation of this chapter or board rules or is found to be mentally or physically unable to safely engage in the practice of chiropractic is subject to any combination of those disciplinary actions identified in subsection F of this section or suspension or revocation of the license. In addition, the board may order the licensee to pay restitution or all costs incurred in the course of the investigation and formal hearing in the matter, or both.

J. The board shall report allegations of evidence of criminal wrongdoing to the appropriate criminal justice agency.

K. The board may accept the surrender of an active license from a licensee who admits in writing to having violated this chapter or board rules.

L. For the purposes of this section, "solicitation" includes contact in person, by telephone, telegraph or telefacsimile or by other communication directed to a specific recipient and includes any written form of communication directed to a specific recipient.

§ 32-925 Practice of chiropractic; limitations

A. A doctor of chiropractic is a portal of entry health care provider who engages in the practice of health care that includes:

1. The diagnosis and correction of subluxations, functional vertebral or articular dysarthrosis or neuromuscular skeletal disorders for restoring and maintaining health.

2. Physical and clinical examinations, diagnostic x-rays and clinical diagnostic laboratory procedures that are limited to nasal swabs, oral swabs, sputum collection, urine collection, finger pricks or venipuncture in order to determine the propriety of a regimen of chiropractic care or to form a basis for referring patients to other licensed health care professionals, or both.

3. Treatment by:

(a) Physical medicine modalities, therapeutic procedures and adjustment of the spine or bodily articulations.

(b) Procedures related to the correction of subluxations and neuromuscular skeletal disorders.

(c) Prescription of orthopedic supports.

(d) Acupuncture.

B. A doctor of chiropractic who is licensed under this chapter shall not prescribe or administer medicine or drugs, perform surgery or practice obstetrics.

§ 32-926 Practice of chiropractic without license prohibited; exemptions

A. It is unlawful for a person to:

1. Practice chiropractic in this state without having first obtained a license as provided in this chapter.

2. Work as a chiropractic assistant except under the supervision of a doctor of chiropractic and pursuant to this chapter and rules adopted pursuant to this chapter.

3. Use the abbreviation "C.A." or the term "chiropractic assistant" unless the person is working under the supervision of a doctor of chiropractic pursuant to this chapter and rules adopted by the board.

4. Practice chiropractic in this state after the board places the person on inactive status pursuant to section 32-933.

B. This chapter does not prevent:

1. A person who is licensed by another state, territory or district from meeting within this state in consultation with a person licensed pursuant to this chapter if that person does not open an office or appoint a place of meeting to receive patients in this state.

2. Any person from acting at the direction and under the supervision of a doctor of chiropractic licensed pursuant to this chapter if that person is acting in an assistant or technical capacity, is not in violation of this chapter and does not claim to be licensed to practice chiropractic.

3. Any chiropractic student from participating in a preceptorship training program approved by the board.

§ 32-927 Violations; classification

A person is guilty of a class 6 felony who:

1. Practices chiropractic without a license.

2. Buys, sells or fraudulently obtains a diploma or license to practice chiropractic.

3. Uses the title chiropractor, D.C., or any other word or title to induce belief that he is engaged in the practice of chiropractic, without a license to practice chiropractic.

§ 32-928 Injunctive relief

The board of chiropractic examiners, the attorney general or the county attorney of the county in which a person engages in the practice of chiropractic without having first obtained a license may, in accordance with the laws governing injunctions maintained in any of the states, commence an action in the county in which the offense is committed to enjoin such person from so engaging until a license is secured. A person so enjoined who violates the injunction shall be punished as for contempt of court. The injunction shall not relieve the person practicing chiropractic without a license from criminal prosecution, but shall be in addition to any remedy provided for the criminal prosecution of the offender.

§ 32-929 Right to examine and copy evidence; summoning witnesses and documents; taking testimony; right to counsel; court aid; process

A. In connection with an investigation by the board on its own motion, the board or its duly authorized agents or employees shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documents, reports, records or any other physical evidence of any person being investigated, or the reports, records and any other documents maintained by and in possession of any hospital, clinic, physician's office, laboratory, pharmacy or any other public or private agency, and any health care institution as defined in section 36-401, if such documents, reports, records or evidence relate to chiropractic competence, unprofessional conduct or the mental or physical ability of a doctor of chiropractic to safely practice chiropractic.

B. For the purpose of all investigations and proceedings conducted by the board:

1. The board on its own initiative, or upon application of any person involved in the investigation, may issue subpoenas compelling the attendance and testimony of witnesses, or demanding the production for examination or copying of documents or any other physical evidence if such evidence relates to chiropractic competence, unprofessional conduct or the mental or physical ability of a doctor of chiropractic to safely practice chiropractic. Within five days after the service of a subpoena on any person requiring the production of any evidence in his possession or under his control, such person may petition the board to revoke, limit or modify the subpoena. The board shall revoke, limit or modify such subpoena if in its opinion the evidence required does not relate to unlawful practices covered by this chapter, is not relevant to the charge which is the subject matter of the hearing or investigation or does not describe with sufficient particularity the physical evidence whose production is required.

2. Any person appearing before the board may be represented by counsel.

3. The superior court, upon application by the board or by the person subpoenaed, shall have jurisdiction to issue an order either:

(a) Requiring such person to appear before the board or the duly authorized agent to produce evidence relating to the matter under investigation.

(b) Revoking, limiting or modifying the subpoena if in the court's opinion the evidence demanded does not relate to unlawful practices covered by this chapter, is not relevant to the grounds for censure, suspension, revocation, fines or refusal to issue a license pursuant to section 32-924 which is the subject matter of the hearing or investigation, or does not describe with sufficient particularity the evidence whose production is required. Any failure to obey such order of the court may be punished by such court as contempt.

C. Patient records, including clinical records, medical reports, laboratory statements and reports, any file, film, any other report or oral statement relating to examinations, findings or treatment of patients, any information from which a patient or his family might be identified or information received and records kept by the board as a result of the investigation procedure outlined in this chapter are not available to the public.

D. Nothing in this section or any other provision of law making communications between a chiropractic physician and his patient a privileged communication applies to investigations or proceedings conducted pursuant to this chapter. The board and its employees, agents and representatives shall keep in confidence the names of any patients whose records are reviewed during the course of investigations and proceedings pursuant to this chapter.

§ 32-930 Chiropractic assistant

Nothing in this chapter shall be construed to prevent a chiropractic assistant from assisting a doctor of chiropractic pursuant to rules adopted by the board except the chiropractic specialty of acupuncture by needle insertion.

§ 32-931 Continuing education; requirements

A. The board by rule may require each licensee to complete up to twelve hours of continuing education each calendar year as a condition of licensure renewal.

B. Continuing education shall cover topics listed in section 32-922, subsection B and section 32-922.02 and shall be taught by a faculty member of a college or university that is accredited by or has status with the council on chiropractic education or is accredited by an accrediting agency recognized by the United States department of education or the council on postsecondary accreditation. Beginning July 1, 2012, the board shall adopt rules to prescribe the continuing education requirements.

C. Compliance with this section shall be documented at the times and in the manner as prescribed by the board in rule.

D. Failure of a person holding a license to practice chiropractic to comply with this section without adequate cause being shown is grounds for probation or suspension of the person's license.

§ 32-933 Inactive license; restrictions; reinstatement to active license

A. On written request, the board shall place a licensee in good standing on inactive status. The request shall state that the licensee is not currently engaged in the practice of chiropractic in this state.

B. If an inactive licensee applies to the board for reinstatement to active licensure within two years after the date the board issues a notice of inactive status, the inactive licensee shall submit the full annual license renewal fee and prove to the board's satisfaction that the licensee has met the continuing education requirements of section 32-931 and board rules relating to continuing education.

C. In addition to meeting the requirements of subsection B of this section, a licensee who has been on inactive status and who has not been actively engaged in the practice of chiropractic for more than two years must pass the national board of chiropractic examiners spec examination before reinstatement to active licensure.

D. A licensee who is on inactive status shall meet all of the requirements of section 32-923.

E. The practice of chiropractic in this state during any time that a license is on inactive status is grounds for sanction of the licensee.

§ 32-934 Business entities; registration; fees; medical records protocol; civil penalty; exemptions; violation; classification

A. A business entity may not offer chiropractic services pursuant to this chapter unless:

1. The entity is registered with the board pursuant to this section and rules adopted pursuant to this chapter.

2. The services are conducted by a doctor of chiropractic who is licensed pursuant to this chapter.

B. The business entity must file a registration application and pay a fee as prescribed by the board by rule.

C. Registration expires on June 1 of each year. A business entity that wishes to renew a registration must submit an application for renewal as prescribed by the board on an annual basis before the expiration date and pay a renewal fee as prescribed by the board by rule. The board shall prorate the renewal fee for the first year registration renewal based on the first day of the month that the business entity was registered with the board. An entity that fails to renew the registration before the expiration date is subject to a late fee as prescribed by the board by rule.

D. A business entity must notify the board in writing within thirty days after any change:

1. In the entity's name, address or telephone number.

2. In the entity's officers or directors.

3. In the name of any doctor of chiropractic who is authorized to provide and who is responsible for providing or supervising the provision of chiropractic services in any facility.

E. The board shall impose a civil penalty as prescribed by the board by rule on a business entity that does not notify the board as required by subsection D of this section.

F. A business entity must comply with this chapter and board rules.

G. A business entity must establish a written protocol for the secure storage, transfer and access of the medical records of the business entity's patients. This protocol must include, at a minimum, procedures for:

1. Notifying patients of the future locations of their records if the business entity terminates or sells the practice.

2. Disposing of unclaimed medical records.

3. The timely response to requests by patients or their representatives for copies of their records.

H. A business entity must notify the board within thirty days after the entity's dissolution or the closing or relocation of any facility and must disclose to the board the entity's procedure by which its patients may obtain their records.

I. The board may impose discipline consistent with this chapter if an entity violates any statute or board rule.

J. The board shall deposit, pursuant to sections 35-146 and 35-147, civil penalties collected pursuant to this section in the state general fund.

K. This section does not apply to:

1. A facility owned by a person who is licensed pursuant to this chapter.

2. A sole proprietorship or partnership that consists of persons who are licensed pursuant to this chapter.

3. A professional corporation or professional limited liability company, the shares of which are owned by persons who are licensed pursuant to this chapter.

4. An administrator or executor of the estate of a deceased doctor of chiropractic or a person who is legally authorized to act for a doctor of chiropractic who has been adjudicated to be mentally incompetent for not more than one year after the date of the doctor of chiropractic's death or incapacitation.

5. A health care institution that is licensed pursuant to title 36.

6. A health professional who is not licensed pursuant to this chapter but who acts within the scope of practice as prescribed by the health professional's regulatory board.

L. A business entity that offers chiropractic services pursuant to this chapter without complying with the registration requirements of this section is guilty of a class 6 felony.

Chapter 9 Collection Agencies

Article 1 Administration

§ 32-1001 Definitions

In this chapter, unless the context otherwise requires:

1. "Claim" means an obligation for the payment of money or its equivalent and a sum or sums owed, due or asserted to be owed or due to another, for which a person is employed to demand payment and collect or enforce such payment, and includes:

(a) Obligations for the payment of money to another, in the form of conditional sales agreements, notwithstanding the personal property sold thereunder, for which payment is claimed or may be or is repossessed in lieu of payment.

(b) An obligation for the payment of money or its equivalent and a sum or sums owed, due or asserted to be owed or due that is sold or assigned to a purchaser or assignee for which either:

(i) The final payment has not been tendered to the seller or assignor.

(ii) Title has not yet passed.

(iii) The purchaser or assignee has a right of recourse against the seller or assignor.

2. "Collection agency" means:

(a) All persons engaged directly or indirectly in soliciting claims for collection or in collection of claims owed, due or asserted to be owed or due.

(b) Any person who, in the process of collecting debts occurring in the operation of the person's own business, uses any name other than the person's own name, which would indicate that a third person is collecting or attempting to collect such debts.

3. "Department" means the department of insurance and financial institutions.

4. "Deputy director" means the deputy director of the financial institutions division of the department of insurance and financial institutions.

5. "Financial institution" means a person who does business under any other law of this state or law of another state or the United States relating to banks, trust companies, savings and loan associations, credit unions and savings banks.

6. "Person" means an individual, firm, partnership, association or corporation.

§ 32-1004 Exemptions

A. The following persons are exempt from this chapter when engaged in the regular course of their respective businesses but shall comply with the requirements of section 32-1051, paragraphs 2 through 6 and section 32-1055, subsection C and subsection D, paragraphs 1, 2, 3 and 5:

1. Attorneys-at-law.

2. A person regularly employed on a regular wage or salary in the capacity of credit person or a similar capacity, except as an independent contractor.

3. Banks, including trust departments of a bank, fiduciaries and financing and lending institutions.

4. Common carriers.

5. Title insurers, title insurance agents and abstract companies while doing an escrow business.

6. Licensed real estate brokers.

7. Employees of licensees under this chapter.

8. Substation payment offices employed by or serving as independent contractors or public utilities.

9. A person licensed pursuant to title 6, chapter 7.

10. A person licensed pursuant to title 6, chapter 9.

11. A person licensed pursuant to title 6, chapter 14, article 1.

12. A participant in a finance transaction in which a lender receives the right to collect commercial claims due the borrower by assignment, by purchase or by the taking of a security interest in those commercial claims.

13. An accounting, bookkeeping or billing service provider that complies with all of the following:

(a) Does not accept accounts that are contractually past due at the time of receipt.

(b) Does not initiate any contact with individual debtors except for the initial written notice of the amount owing and one written follow-up notice.

(c) Does not give or send to any debtor a written communication that requests or demands payment.

(d) Does not receive or have access to monies paid by debtors or their insurers.

(e) All communications with the debtors are done in the name of the creditor.

14. A person collecting claims owed, due or asserted to be owed or due to a financial institution of which the deposits are insured by an agency of the federal government, or any affiliate of the financial institution, if the person is related by common ownership or affiliated by corporate control with the financial institution and collects the claims only for the financial institution or any affiliate of the financial institution.

15. A person who is licensed pursuant to title 20, chapter 2, article 3, 3.1, 3.2, 3.3 or 3.5 and who is authorized to collect premiums under an insurance policy financed by a premium finance agreement as defined in section 6-1401.

16. A person that is licensed pursuant to title 20, chapter 2, article 9, that is authorized to act as an administrator for an insurer as defined in section 20-485 and that collects charges pursuant to section 20-485.09, subsection B.

B. For the purposes of subsection A, paragraph 12 of this section:

1. A transaction shall not be deemed a finance transaction if the primary purpose is to facilitate the collection of claims.

2. Commercial claim does not include an account arising from the purchase of a service or product intended for personal, family or household use.

C. For the purposes of subsection A, paragraph 13, subdivision (b) of this section, the initial written notice and follow-up notice may contain only the following information:

1. The name, address and telephone and telefacsimile numbers of the creditor.

2. The amount due and an itemization of that amount.

3. The date payment is due.

4. The address or place where payment is to be made.

5. If the payment is past due, that payment is past due.

D. For a person who is exempt under subsection A, paragraph 14 of this section, the deputy director shall investigate complaints of residents of this state relating to any violations of section 32-1051, paragraphs 2 through 7 or section 32-1055, subsection C or subsection D, paragraph 1, 2, 3 or 5 and may examine the books, accounts, claims and files of a person that relate to the complaint. A person who is exempt and who violates section 32-1051, paragraphs 2 through 6 or section 32-1055, subsection C or subsection D, paragraph 1, 2, 3 or 5 is subject to sections 6-132, 6-136 and 6-137.

Article 2 Licensing

§ 32-1021 Original application for license; financial statement; bond; definition

A. A person desiring to conduct a collection agency shall make an original application to the department on forms prescribed by the deputy director setting forth verified information to assist the deputy director in determining the applicant's ability to meet the requirements of this chapter.

B. An application for an original or a renewal license shall be accompanied by:

1. A financial statement in the form provided in section 32-1022, showing the applicant's assets and liabilities and truly reflecting the applicant's net worth in cash or its equivalent.

2. A bond in the form provided in section 32-1022, computed on a base consisting of the gross annual income of the licensee generated from all business transacted in this state by the licensee during the preceding year, in the minimum amount as follows:

Base Minimum Bond

Not over $250,000 $10,000

$250,001 to $500,000 $15,000

$500,001 to $750,000 $25,000

$750,001 and over $35,000

C. The deputy director may require from all applicants additional information that the deputy director deems necessary in determining whether the applicant is entitled to the license sought.

D. For the purposes of this section, "all business transacted in this state" includes:

1. The collection of debts from debtors who reside in this state, regardless of where the licensee is located.

2. The collection of debts made from an office in this state, regardless of where the debtor resides.

3. The collection of debts made on behalf of creditors who reside in this state, regardless of where the debtor and the collection agent reside.

§ 32-1022 Contents of financial statement; bond provisions

A. The financial statement required by section 32-1021 shall be sworn to by the applicant, if the applicant is an individual, or by a partner, director, manager or treasurer in its behalf if the applicant is a partnership, corporation or incorporated association. The information in the financial statement shall be confidential and is not a public record.

B. The bond shall run to the people of the state and shall be executed and acknowledged by the applicant as principal and by a corporation, licensed by this state to transact fidelity and surety insurance business, as surety. The bond shall be continuous in form and shall remain in full force and effect at all times while holding a license. The bond shall be conditioned that the applicant, within thirty days after the last day of the month in which a collection is made, shall make an account of and pay to the client the proceeds collected for the client by the applicant, less charges for collection in accordance with the agreement between the applicant and client, but when the amount due the client is less than $5, payment may be deferred for an additional thirty days.

C. Any surety company intending to withdraw as surety of any licensee shall give sixty days' notice of such intention to the deputy director, which notice shall be by registered mail and shall also give sixty days' notice by registered mail to the licensee addressed to the licensee's last known address. When a surety shall for any cause cancel the bond of any licensee, the deputy director shall immediately notify such licensee by registered mail addressed to the licensee's last known address as shown by the files of the department. The license of any licensee shall be void unless, prior to the termination, a new bond has been filed with the department. A licensee changing the licensee's surety shall file a new bond with the department with a surety on the new bond meeting the qualifications of this section.

D. Notwithstanding section 35-155, in lieu of the bond described in this section, an applicant for a license or renewal of a license may deposit with the deputy director a deposit in the form of cash or alternatives to cash in the amount prescribed under section 32-1021. The deputy director may accept any of the following as an alternative to cash:

1. Certificates of deposit or investment certificates that are payable or assigned to the state treasurer, issued by banks doing business in this state and fully insured by the federal deposit insurance corporation or any successor institution.

2. Certificates of deposit, investment certificates or share accounts that are payable or assigned to the state treasurer, issued by a savings and loan association or savings bank doing business in this state and fully insured by the federal deposit insurance corporation or any successor institution.

3. Certificates of deposit, investment certificates or share accounts that are payable or assigned to the state treasurer, issued by a credit union doing business in this state and fully insured by the national credit union administration or any successor institution.

E. The deputy director shall deposit the cash or alternative to cash received under this section with the state treasurer. The state treasurer shall hold the cash or alternatives to cash in the name of this state to guarantee the faithful performance of all legal obligations of the person required to post bond pursuant to section 32-1021, subsection B. The person is entitled to receive any accrued interest earned from the alternatives to cash. The state treasurer may impose a fee to reimburse the state treasurer for administrative expenses. The fee shall not exceed $10 for each cash or alternative to cash deposit and shall be paid by the applicant for a license or renewal of a license. The state treasurer may prescribe rules relating to the terms and conditions of each type of security provided by this section.

F. In addition to such other terms and conditions as the deputy director prescribes by rule or order, the principal amount of the deposit shall be released only on written authorization of the deputy director or on the order of a court of competent jurisdiction. The principal amount of the deposit shall not be released before the expiration of three years after the first to occur of any of the following:

1. The date of substitution of a bond for a cash alternative.

2. The surrender of the license.

3. The revocation of the license.

4. The expiration of the license.

G. A suit may not be commenced on a bond or cash or alternatives to cash later than three years following the act or acts on which the suit is based, except that for claims of fraud or mistake, the period of limitations shall be measured as prescribed in section 12-543, paragraph 3.

§ 32-1023 Qualifications of applicants

A. An applicant for a license issued under this chapter shall:

1. Be a citizen of the United States.

2. Not have been convicted of a crime involving moral turpitude.

3. Not have defaulted on payment of money collected or received for another.

4. Not have been a former licensee under this chapter whose license was suspended or revoked and not subsequently reinstated.

B. If the applicant for a license is a firm, partnership, association or corporation, the qualifications required by subsection A of this section shall be required of the individual in active management of the firm, partnership, association or corporation.

C. When a licensed agency ceases to be under the active management of a qualified person, as defined in rules, notice of this fact shall be given to the deputy director within ten days. The licensee shall have ninety days after the termination of the services of the acting manager to replace the qualified person and notify the deputy director of the qualified replacement. If the agency is not placed under the active management of a new qualified person and notice is not given to the deputy director within the ninety-day period, the license of the agency expires unless a provisional license has been granted under section 32-1027.

§ 32-1024 Licensing out-of-state collection agents

The deputy director shall issue a license to operate a collection agency to a person who holds and presents with the person's application a valid and subsisting license to operate a collection agency issued by another state or an agency of another state if:

1. Requirements for securing the license were, at the time of issuance, substantially the same or equal to requirements imposed by this chapter.

2. The state concerned extends reciprocity under similar circumstances to licensed collection agents of this state.

3. The application is accompanied by the fees and financial and bonding requirements set forth in this chapter.

§ 32-1025 Annual renewal of license; suspension; expiration

A. Except as provided in section 32-4301, a person desiring to secure renewal of a collection agency license shall file a financial statement, make a renewal application to the department and pay the fees prescribed in section 6-126 not later than December 31 of each year on forms prescribed by the deputy director setting forth verified information to assist the deputy director in determining whether the applicant is in default of or in violation of the terms of this chapter and whether the applicant is still meeting the requirements of this chapter. If the renewal applicant is unable to make a financial statement at the time of filing the application, the applicant may make a written request for an extension of time to file such financial report, and if the extension is granted the applicant shall file a financial statement not later than March 1.

B. Licenses that are not renewed on or before December 31 are suspended by operation of law. A licensee may renew a suspended license by submitting to the department the fees prescribed in section 6-126 along with a renewal application and any applicable late fee, as may be determined by the deputy director by rule, before January 31. Licenses that are not renewed on or before January 31 expire.

§ 32-1026 Issuance of licenses

A. On receipt of an original application accompanied by the fees prescribed in section 6-126 and the financial statement and bond required by this chapter, the deputy director shall investigate the qualifications of the applicant and, if the applicant meets the qualifications of this chapter, shall approve the application. If the application is approved, the license shall be promptly issued to the applicant.

B. A license issued under this chapter shall not be transferable or assignable and control of a license may not be acquired through a stock purchase or other device without the prior written consent of the deputy director. Consent shall not be given if the deputy director finds that the acquiring person does not meet the qualifications of this chapter. For purposes of this subsection, "control" means the power to vote more than twenty percent of the outstanding voting shares of a licensed corporation, partnership, association or trust.

§ 32-1027 Issuance of provisional license for limited purposes

In the event of the death of an individual licensee, dissolution of a licensee partnership by death or operation of law, or termination of employment of the active manager if the licensee is a firm, partnership, association or corporation, if it is shown that the financial and bonding requirements of this chapter have been met, the deputy director shall issue without fee a provisional license to the personal representative of the deceased or the deceased's appointee, to the surviving partners, or to the firm, association or corporation, as the case may be, which shall be valid for the following purposes only and expire at the following times:

1. A provisional license issued to a personal representative or the personal representative's appointee shall expire one year from the date of issuance and shall not be subject to renewal. Authority of the provisional licensee shall be limited to those activities deemed necessary to wind up the business of the former licensee.

2. Other provisional licenses shall expire three months after the date of issuance unless the provisional licensee within such period can qualify for a full license.

§ 32-1028 Fees

Every original or renewal application shall be accompanied by the fees prescribed in section 6-126.

Article 3 Regulation

§ 32-1051 Duties of licensees

An individual, firm, partnership, association or corporation to whom a license is to be issued under this chapter shall:

1. Meet the financial responsibility and bonding requirements of this chapter.

2. Not have been a former licensee under this chapter whose license was suspended or revoked and not subsequently reinstated.

3. Except for attorneys licensed to practice law, not attempt to collect any collection fee, attorney fee, court cost or expenses unless the fees, charges or expenses are justly due from and legally chargeable against the debtor or have been judicially determined. A licensee may not engage in any unfair or misleading practices or resort to any oppressive, vindictive or illegal means or methods of collection.

4. Except for attorneys licensed to practice law, not give or send to any debtor, or cause to be given or sent to any debtor, any notice, letter, message or form that:

(a) Simulates any legal process.

(b) Is ambiguous as to or misrepresents the character, extent or amount of the obligation of the debtor.

(c) Represents or implies that the existing obligation of the debtor may be increased by the addition of attorney fees, investigation fees, service fees or any other fees or charges when in fact these fees or charges may not legally be added to the existing obligation of the debtor.

(d) Threatens to sell the obligation of the debtor to any person, firm or group.

(e) Uses or sets forth the name of or purports to be from any attorney at law or legal firm.

5. Except for attorneys licensed to practice law, not use any letterhead or literature bearing any heading, slogan or statement representing or implying that the licensee practices law, renders legal services or advice or maintains a legal department.

6. Not use any letterhead, advertisement, agreement, form, circular or other printed matter, or otherwise, to convey the impression that the individual, firm, partnership, association or corporation is vouched for or is an instrumentality of this state, a political subdivision of this state or the department.

§ 32-1053 Denial, revocation or suspension of license

A. The deputy director may deny a license to a person or suspend or revoke a license pursuant to title 41, chapter 6, article 10 if the deputy director finds that an applicant or licensee:

1. Is insolvent as defined in section 47-1201.

2. Has violated any applicable law, rule or order.

3. Has been convicted in any state of any felony or other crime involving breach of trust or dishonesty.

4. Has had an order entered against the applicant or licensee by an administrative agency of this state, the federal government or any other state of the United States and that order is based on conduct involving fraud, deceit or misrepresentation by the licensee or applicant.

5. Has made a material misstatement or omission on the application for a license or on any document required to be filed with the deputy director.

B. It is sufficient cause for the denial, suspension or revocation of a license if an officer, director, partner, employee or controlling person of the collection agency has acted or failed to act in a manner that would be cause for denial, suspension or revocation of a license. For purposes of this subsection, "controlling person" means a person who owns more than a twenty percent equity interest in the collection agency and has the power to actively participate in the conduct of the collection agency.

§ 32-1055 Unlawful acts

A. It is unlawful for a person to conduct a collection agency in this state without having first applied for and obtained a license under this chapter.

B. A collection agency licensed under this chapter shall not directly or indirectly aid, abet or receive compensation from an unlicensed person. Nothing in this chapter shall prevent a licensed agency from accepting, as forwardee, claims for collection from a collection agency or attorney whose place of business is outside this state.

C. A licensee shall not advertise a claim for sale or threaten to so advertise a claim as a means of endeavoring to enforce payment, nor shall a licensee agree to do so for the purpose of soliciting claims. This subsection shall not be deemed to affect a licensee acting as assignee for the benefit of a creditor or acting under a court order.

D. It is unlawful for a person conducting a collection agency in this state to:

1. Fail to render an account of and pay to the client for whom collection has been made the proceeds collected, less collection charges as agreed to by the person and the client, within thirty days from the last day of the month in which the proceeds were collected. If the amount due the client is less than five dollars, payment may be deferred for an additional thirty days.

2. Fail to deposit with a local depository all monies collected by the person and due to the person's clients, and to fail to keep these monies deposited until these monies or equivalent amounts are remitted to the person's clients. Notwithstanding this paragraph, if a person conducting a collection agency does not maintain an office in this state, the person may deposit and keep these monies in a depository in a state where the person maintains the person's principal office.

3. Fail to keep a record of monies collected and the remittance of these monies.

4. Fail to notify the department within ten days of any change of name under which the person does business as a collection agency or address at which the person conducts business.

5. Aid or abet, directly or indirectly, any person, persons or organizations in evading or violating any of the provisions of this chapter.

§ 32-1056 Violation; classification

A. A person operating a collection agency without a license shall be guilty of a class 1 misdemeanor.

B. A licensee violating the provisions of section 32-1055 or the rules and regulations adopted pursuant to this chapter shall be subject to revocation of license and shall be guilty of a class 1 misdemeanor.

§ 32-1057 Prosecution of violations; individual liability

A. The prosecuting officer of a county or city shall prosecute all violations of this chapter occurring within his jurisdiction.

B. An officer or agent of a corporation or association participating in a violation of this chapter by such corporation or association shall be subject to the penalties prescribed by section 32-1056 for an individual.

Chapter 10 Contractors

Article 1 Registrar of Contractors

§ 32-1101 Definitions

A. In this chapter, unless the context otherwise requires:

1. "Advertisement" means any written or oral publication, dissemination, solicitation or circulation that is intended to directly or indirectly induce any person to enter into an agreement for contracting services with a contractor, including business cards and telephone directory display advertisements.

2. "Commercial contractor" is synonymous with the terms "commercial builder", "industrial builder" and "public works builder" and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others, or directly or indirectly supervises others, except within residential property lines, to:

(a) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction.

(b) Connect such a structure or improvements to utility service lines and metering devices and the sewer line.

(c) Provide mechanical or structural service for any such structure or improvements.

3. "Contractor":

(a) Is synonymous with the term "builder" and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others, or directly or indirectly supervises others to:

(i) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction.

(ii) Connect such a structure or improvements to utility service lines and metering devices and the sewer line.

(iii) Provide mechanical or structural service for any such structure or improvements.

(b) Includes subcontractors, specialty contractors, floor covering contractors, hardscape contractors and consultants who represent that they are able to supervise or manage a construction project for the property owner's benefit, including hiring and firing specialty contractors, scheduling work on the project and selecting and purchasing construction material.

4. "Dual licensed contractor" is synonymous with the term "commercial and residential builder" and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that for compensation undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others, or directly or indirectly supervises others under a single license on commercial or residential property to:

(a) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, excavation or other structure or improvement, including any appurtenances, or to do any part thereof.

(b) Connect such a structure or improvements to utility service lines and metering devices and the sewer line.

(c) Provide mechanical or structural service for any such structure or improvements.

5. "License" means an authorization for the person who is listed on the electronic, paper or other records maintained by the registrar to act in the capacity of a contractor.

6. "Named on a license" means required to be identified pursuant to section 32-1122, subsection B.

7. "Person" means a corporation, company, partnership, firm, association, trust, society or natural person.

8. "Qualifying party" means a person who is responsible for a licensee's actions and conduct performed under the license and who either:

(a) Has an ownership interest in the license.

(b) Is regularly employed by the licensee.

9. "Registrar" means the registrar of contractors.

10. "Residential contractor":

(a) Is synonymous with the term "residential builder" and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that for compensation undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, or does himself or by or through others, within residential property lines:

(i) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any residential structure, such as houses, townhouses, condominiums or cooperative units and any appurtenances on or within residential property lines.

(ii) Connect such a residential structure to utility service lines, metering devices or sewer lines.

(iii) Provide mechanical or structural service for any such residential structure.

(b) Does not include an owner making improvements to the owner's property pursuant to section 32-1121, subsection A, paragraph 5.

B. Only contractors as defined in this section are licensed and regulated by this chapter.

§ 32-1101.01 Local authority

The legislature determines that the licensing of construction contractors is a proper state function. Cities, including charter cities, towns and counties shall not require licenses of any construction contractors licensed by statute prior to the effective date of this section.

§ 32-1102 Classification of licenses; contracting business

For the purpose of license classification, the contracting business shall include:

1. General commercial building contracting, which is engaging in the contracting business in connection with any structure built, being built or to be built on commercial property for the support, shelter and enclosure of persons, animals, chattels or movable property of any kind, or superintending the whole or any part thereof, and which includes the management or direct or indirect supervision of any work performed by a contractor but does not include a person who merely furnishes materials or supplies as provided in section 32-1121 without fabricating them into or consuming them in performing the work of the general contractor.

2. General dual licensed contracting, which is engaging in the contracting business in connection with any structure built, being built or to be built on residential or commercial property for the support, shelter and enclosure of persons, animals, chattels or movable property of any kind, or superintending the whole or any part thereof, and which includes the management or direct or indirect supervision of any work performed by a contractor but does not include a person who merely furnishes materials or supplies as provided in section 32-1121 without fabricating them into or consuming them in performing the work of the general contractor.

3. General engineering contracting, which is engaging in the contracting business other than residential contracting in connection with fixed works requiring specialized engineering knowledge and skills and includes irrigation, drainage, water power, water supply, flood control, inland waterways, harbors, railroads, highways, tunnels, airport runways, sewerage, bridges, earth moving projects, paving and transmission lines.

4. General residential contracting, which is engaging in the contracting business by any general contractor or subcontractor who undertakes to construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any residential structure or appurtenances including swimming pools on or within residential property lines.

5. Specialty commercial contracting, which is engaging in the contracting business in the performance of construction work requiring special skill and involving the use of specialized construction trades or crafts other than residential contracting.

6. Specialty dual licensed contracting, which is engaging in the contracting business in the performance of construction work requiring special skill and involving the use of specialized construction trades or crafts in residential and commercial contracting.

7. Specialty residential contracting, which is engaging in the residential contracting business by the performance of construction work requiring special skill and involving the use of specialized construction trades or crafts within residential property lines.

§ 32-1103 Registrar of contractors; salary

The governor shall appoint a registrar of contractors pursuant to section 38-211. The registrar shall serve at the pleasure of the governor. The registrar is vested with all functions and duties relating to administration of this chapter. The registrar shall receive compensation as determined pursuant to section 38-611.

§ 32-1104 Powers and duties

A. The registrar, in addition to other duties and rights provided for in this chapter, shall:

1. Maintain an office in Phoenix and in such other cities and towns in the state as the registrar deems advisable and necessary.

2. Maintain a complete indexed record of all applications and licenses issued, renewed, terminated, cancelled, revoked or suspended under this chapter, including timely notation of any judicial disposition on appeal, for a period of not less than seven years.

3. Furnish a certified copy of any license issued or an affidavit that no license exists or that a license has been cancelled or suspended, including information as to the status on appeal of such a cancellation or suspension, on receipt of the prescribed fee, and that certified copy or affidavit shall be received in all courts and elsewhere as prima facie evidence of the facts stated therein. The registrar shall also furnish certified copies of license bonds or cash deposit certificates on receipt of the prescribed fee. Fees charged pursuant to this paragraph are $10 per hour, except that the minimum fee charged pursuant to this paragraph is $10.

4. Employ such deputies, investigators and assistants subject to title 41, chapter 4, article 4, and procure such equipment and records, as are necessary to enforce this chapter. With respect to the enforcement of section 32-1164, the registrar or the registrar's investigators are vested with the authority to issue a citation to any violators of this chapter in accordance with section 13-3903. When the registrar or the registrar's investigators conduct investigations they are authorized to receive criminal history record information from the department of public safety and other law enforcement agencies.

5. Make rules the registrar deems necessary to effectually carry out the provisions and intent of this chapter. Such rules shall include the adoption of minimum standards for good and workmanlike construction. In adopting such rules of minimum standards, the registrar shall be guided by established usage and procedure as found in the construction business in this state. If the rules of minimum standards adopted by the registrar are in any manner inconsistent with a building or other code of this state, a county, city or other political subdivision or local authority of this state, compliance with such code shall constitute good and workmanlike construction for the purposes of this chapter.

6. Apply the following to proposed rule changes:

(a) The registrar of contractors, at the time the registrar files notice of proposed rule change with the secretary of state in compliance with title 41, chapter 6, shall mail to each trade association that qualifies in accordance with subdivision (b) of this paragraph, and any other individual holding a bona fide contractor's license who qualifies in accordance with subdivision (b) of this paragraph, a copy of the notice of proposed rule change.

(b) Every trade association in this state allied with the contracting business that files a written request that a notice be mailed to it and shows that the association has an interest in the rules of the registrar of contractors shall receive a copy thereof, as set forth in subdivision (a) of this paragraph. Such filing of a request may be made every two years, and it shall contain information as to the nature of the association and its mailing address. Any duly licensed contractor who files a written request shall receive a copy of the proposed rule changes in accordance with this paragraph. Each such request may be made every two years.

7. Prepare and furnish decals and business management books when deemed advisable by the registrar. A reasonable fee may be charged for such decals and business management books.

8. Refer criminal violations of this chapter to the appropriate law enforcement agency or prosecuting authority.

B. The registrar may develop and institute programs to do any of the following:

1. Educate the public and contractors licensed pursuant to this chapter regarding statutes, rules, policies and operations of the agency.

2. Assist in resolving disputes in an informal process before a reportable written complaint is filed. The registrar must notify the licensed contractor in an alleged dispute before a written complaint is filed and allow the contractor the opportunity to be present at any inspection regarding the alleged dispute. The registrar must give the contractor at least five days' notice before the inspection. Issues in the alleged dispute under this section shall not be limited in number and shall not be considered formal written complaints. The homeowner reserves the right to deny access to the contractor under this informal complaint process. The registrar must notify the contractor and the homeowner in writing of the registrar's findings within five days after the date of the inspection. The registrar may not post any information regarding the informal complaint process as part of a licensee's record on the registrar's website.

3. Develop, manage, operate and sponsor construction related programs designed to benefit the public in conjunction with other private and public entities.

C. The registrar shall publicly post a list of applicants for a contractor license on its website for at least twenty days, commencing on the day designated by the registrar. The registrar shall issue a license if the applicant meets all requirements regardless of the twenty-day posting period. The registrar shall furnish copies of the posting list on written request. A reasonable charge, not to exceed $2 per month, may be made for compilation, printing and postage for the posting list. The list shall contain the following information:

1. The name and address of the applicant.

2. The names, addresses and official capacity of all persons required to sign the application under section 32-1122.

D. The registrar may accept voluntary gifts, grants or matching monies from public agencies or enterprises for the conduct of programs that are authorized by this section or that are consistent with the purpose of this chapter.

§ 32-1105 Rulemaking powers for purposes of classifying and reclassifying contractors

A. The registrar may adopt rules necessary to classify contractors in a manner consistent with established usage and procedure as found in the construction business, and may limit the field and scope of operations of a licensed contractor within any of the branches of the contracting business, as described in this chapter, in which the contractor is classified and qualified to engage.

B. The registrar shall establish by rule license classifications for dual licensed contractors. A contractor classified as a dual licensed contractor may perform equivalent construction work on both commercial and residential projects under a single license. The registrar shall adopt rules necessary to establish the scope of work that may be done under the dual license classifications.

C. A licensee may apply for classification and be classified in more than one classification after the licensee meets the qualifications prescribed by the registrar for such additional classification or classifications.

D. This chapter does not prohibit a specialty contractor from taking and executing a contract involving the use of two or more crafts or trades if the performance of the work in the crafts or trades other than those in which the specialty contractor is licensed is incidental and supplemental to the performance of work in the craft for which the specialty contractor is licensed.

§ 32-1106 Enforcement powers

In any investigation, proceeding or hearing he is empowered to institute, conduct or hold under this chapter, the registrar, a deputy registrar, an assistant, an administrative law judge or an investigator may administer oaths, certify to official acts, issue subpoenas for attendance of witnesses and production of books, papers and records, and exercise the same powers in this regard as conferred upon the corporation commissioners and public officers by the provisions of section 40-244 and section 12-2212. All the provisions of such sections are incorporated into this section with the same force and effect as if herein set forth at length, and wherever in such sections the term "commission" or "commissioners" or similar designation occurs, it shall, for the purpose of this reference mean the "registrar of contractors."

§ 32-1107 Registrar of contractors fund

(L24, Ch. 222, sec. 11. Eff. until 7/1/28)

A. The registrar of contractors fund is established. The registrar of contractors shall administer the fund. The registrar shall deposit, pursuant to sections 35-146 and 35-147, eighty-five percent of all monies collected under this chapter in the registrar of contractors fund and fifteen percent of all monies collected under this chapter in the state general fund, except monies collected for the residential contractors' recovery fund and the contractors' cash bond fund and monies received from civil penalties.

B. The registrar shall use monies in the registrar of contractors fund for carrying out the powers and duties of the registrar and for the purposes of this chapter. Monies deposited in the registrar of contractors fund are subject to section 35-143.01.

§ 32-1107 (Version 2) Registrar of contractors fund

(L24, Ch. 222, sec. 12. Eff. 7/1/28)

A. The registrar of contractors fund is established. The registrar of contractors shall administer the fund. The registrar shall deposit, pursuant to sections 35-146 and 35-147, ninety percent of all monies collected under this chapter in the registrar of contractors fund and ten percent of all monies collected under this chapter in the state general fund, except monies collected for the residential contractors' recovery fund and the contractors' cash bond fund and monies received from civil penalties.

B. The registrar shall use monies in the registrar of contractors fund for carrying out the powers and duties of the registrar and for the purposes of this chapter. Monies deposited in the registrar of contractors fund are subject to section 35-143.01.

Article 2 Licensing

§ 32-1121 Persons not required to be licensed; penalties; applicability

(L19, Ch. 140, sec. 1)

A. This chapter does not apply to:

1. An authorized representative of the United States government, this state or any county, incorporated city or town, reclamation district, irrigation district or other municipality or political subdivision of this state.

2. Trustees of an express trust that is not formed for the purpose of conducting business as a contractor or officers of a court, if they are acting within the terms of their trust or office.

3. Public utilities operating under regulation of the corporation commission or construction, repair or operation incidental to discovering or producing petroleum or gas, or drilling, testing, abandoning or otherwise operating a petroleum or gas well, if performed by an owner or lessee.

4. Any materialman, manufacturer or retailer that furnishes finished products, materials or articles of merchandise and that does not install or attach such items or installs or attaches such items if the total value of the sales contract or transaction involving such items and the cost of the installation or attachment of such items to a structure does not exceed $1,000, including labor, materials and all other items, but excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet using a two-pronged or three-pronged electrical connector or that has internal batteries that do not exceed twelve volts in a single, series or parallel configuration and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure. The materialman, manufacturer or retailer shall inform the purchaser that the installation may also be performed by a licensed contractor whose name and address the purchaser may request.

5. Owners of property who improve such property or who build or improve structures or appurtenances on such property and who do the work themselves, with their own employees or with duly licensed contractors, if the structure, group of structures or appurtenances, including the improvements thereto, are intended for occupancy solely by the owner and are not intended for occupancy by members of the public as the owner's employees or business visitors and the structures or appurtenances are not intended for sale or for rent. In all actions brought under this chapter, except an action against an owner-occupant as defined in section 33-1002, proof of the sale or rent or the offering for sale or rent of any such structure by the owner-builder within one year after completion or issuance of a certificate of occupancy is prima facie evidence that such a project was undertaken for the purpose of sale or rent. For the purposes of this paragraph, "sale" or "rent" includes any arrangement by which the owner receives compensation in money, provisions, chattels or labor from the occupancy or the transfer of the property or the structures on the property.

6. Owners of property who are acting as developers and who build structures or appurtenances to structures on their property for the purpose of sale or rent and who contract for such a project with a general contractor licensed pursuant to this chapter and owners of property who are acting as developers, who improve structures or appurtenances to structures on their property for the purpose of sale or rent and who contract for such a project with a general contractor or specialty contractors licensed pursuant to this chapter. To qualify for the exemption under this paragraph, the licensed contractors' names and license numbers shall be included in all sales documents.

7. Architects or engineers who are engaging in their professional practice as defined in chapter 1 of this title and who hire or offer to hire the services of a contractor for preconstruction activities relating to investigation and discovery, including:

(a) Subsurface utility location and designation services.

(b) Potholing.

(c) Drilling for any of the following:

(i) Soil samples.

(ii) Rock samples.

(iii) Pavement samples.

(d) Locating existing features of a building or structure, including existing electrical, mechanical, plumbing and structural members.

8. A person licensed, certified or registered pursuant to title 3, chapter 20 or a person working under the direct supervision of a person certified or qualified pursuant to title 3, chapter 20 to the extent the person is engaged in pest management.

9. The sale or installation of finished products, materials or articles of merchandise that are not fabricated into and do not become a permanent fixed part of the structure. This exemption does not apply if a local building permit is required, if the total price of the finished product, material or article of merchandise, including labor but excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet using a two-pronged or three-pronged electrical connector or that has internal batteries that do not exceed twelve volts in a single, series or parallel configuration and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, is more than $1,000 or if the removal of the finished product, material or article of merchandise causes material damage to the structure or renders the structure unfit for its intended use.

10. Employees of the owners of condominiums, townhouses, cooperative units or apartment complexes of four units or less or the owners' management agent or employees of the management agent repairing or maintaining structures owned by them.

11. Any person who engages in the activities regulated by this chapter, as an employee of an exempt property owner or as an employee with wages as the person's sole compensation.

12. A surety company or companies that are authorized to transact business in this state and that undertake to complete a contract on which they issued a performance or completion bond if all construction work is performed by duly licensed contractors.

13. Insurance companies that are authorized to transact business in this state and that undertake to perform repairs resulting from casualty losses pursuant to the provisions of a policy if all construction work is performed by duly licensed contractors.

14. Any person other than a licensed contractor engaging in any work or operation on one undertaking or project by one or more contracts, for which the aggregate contract price, including labor, materials and all other items, but excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet using a two-pronged or three-pronged electrical connector or that has internal batteries that do not exceed twelve volts in a single, series or parallel configuration and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, is less than $1,000. The work or operations that are exempt under this paragraph shall be of a casual or minor nature. This exemption does not apply:

(a) In any case in which the performance of the work requires a local building permit.

(b) In any case in which the work or construction is only a part of a larger or major operation, whether undertaken by the same or a different contractor, or in which a division of the operation is made in contracts of amounts less than $1,000, excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet using a two-pronged or three-pronged electrical connector or that has internal batteries that do not exceed twelve volts in a single, series or parallel configuration and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, for the purpose of evasion of this chapter or otherwise.

(c) To a person who uses any form of advertising to the public in which the person's unlicensed status is not disclosed by including the words "not a licensed contractor" in the advertisement.

15. A person who is licensed, certified or registered pursuant to title 41, chapter 37, article 4 and who is not otherwise required to be licensed under this chapter or an employee of such person.

16. A person who functions as a gardener by performing lawn, garden, shrub and tree maintenance.

17. Alarm agents as defined in section 32-101.

18. Cable television, satellite television and telecommunications providers, including data and related services of cable television, satellite television and telecommunications providers including contractors and subcontractors of cable television, satellite television and telecommunications providers if the work of the contractors and subcontractors is limited to installing low-voltage cable, telephone services, internet services and data service. Installation does not include digging, trenching, grading, horizontal boring, compacting or filling earthen or other material before the service drop of the commercial or residential structure.

B. A person who is licensed to perform work in a particular trade pursuant to this chapter is not required to obtain and maintain a separate license for mechanical or structural service work the person performs within the scope of that trade.

C. Any person who does not have an exemption from licensure pursuant to subsection A, paragraph 14, subdivision (c) of this section is subject to prosecution for a violation of section 44-1522. The attorney general may investigate the act or practice and take appropriate action pursuant to title 44, chapter 10, article 7.

D. The exemptions from licensure pursuant to subsection A, paragraphs 4, 9 and 14 of this section do not apply to either of the following:

1. All fire safety and mechanical, electrical and plumbing work that is done in connection with fire safety installation and fire safety maintenance and repair. For the purposes of this paragraph, "fire safety installation" means hardwired or interconnected smoke alarms and fire sprinklers and does not include an individual device that is attached by a nail, screw or other fastening device to the frame or foundation of any residential unit. For the purposes of this paragraph, fire safety maintenance and repair does not include routine work that is conducted by an employee of an apartment or condominium complex and that is incidental to the fire safety equipment.

2. All work done, including installing, maintaining and repairing devices, appliances or equipment, that involves connecting to any supply of natural gas, propane or other petroleum or gaseous fuel. This paragraph does not impact the effect of section 36-1624.01.

§ 32-1121 (Version 2) Persons not required to be licensed; penalties; applicability

(L19, Ch. 145, sec. 5)

A. This chapter does not apply to:

1. An authorized representative of the United States government, this state or any county, incorporated city or town, reclamation district, irrigation district or other municipality or political subdivision of this state.

2. Officers of a court or trustees of an express trust that is not formed for the purpose of conducting business as a contractor, if they are acting within the terms of their office or trust.

3. Public utilities operating under regulation of the corporation commission or construction, repair or operation incidental to discovering or producing petroleum or gas, or the drilling, testing, abandoning or other operation of a petroleum or gas well, if performed by an owner or lessee.

4. Except as provided in subsection D of this section, any materialman, manufacturer or retailer who informs the purchaser that the installation may also be performed by a licensed contractor whose name and address the purchaser may request and who furnishes finished products, materials or articles of merchandise and who:

(a) Does not install or attach such items.

(b) Installs or attaches such items if the total value of the sales contract or transaction involving such items and the cost of the installation or attachment of such items to a structure does not exceed $1,000, including labor, materials and all other items, but excluding any electrical fixture or appliance that meets all of the following:

(i) Was designed by the manufacturer.

(ii) Is unaltered, unchanged or unmodified by any person.

(iii) Can be plugged into a common electrical outlet.

5. Owners of property who improve such property or who build or improve structures or appurtenances on such property and who do the work themselves, with their own employees or with duly licensed contractors, if the structure, group of structures or appurtenances, including the improvements thereto, are intended for occupancy solely by the owner and are not intended for occupancy by members of the public as the owner's employees or business visitors and the structures or appurtenances are not intended for sale or for rent. In all actions brought under this chapter, except an action against an owner-occupant as defined in section 33-1002, proof of the sale or rent or the offering for sale or rent of any such structure by the owner-builder within one year after completion or issuance of a certificate of occupancy is prima facie evidence that such project was undertaken for the purpose of sale or rent. For the purposes of this paragraph, "sale" or "rent" includes any arrangement by which the owner receives compensation in money, provisions, chattels or labor from the occupancy or the transfer of the property or the structures on the property.

6. Owners of property who are acting as developers and who build structures or appurtenances to structures on their property for the purpose of sale or rent and who contract for such a project with a general contractor licensed pursuant to this chapter and owners of property who are acting as developers, who improve structures or appurtenances to structures on their property for the purpose of sale or rent and who contract for such a project with a general contractor or specialty contractors licensed pursuant to this chapter. To qualify for the exemption under this paragraph, the licensed contractors' names and license numbers must be included in all sales documents.

7. Architects or engineers who are engaging in their professional practice as defined in chapter 1 of this title and who hire or offer to hire the services of a contractor for preconstruction activities relating to investigation and discovery, including:

(a) Subsurface utility location and designation services.

(b) Potholing.

(c) Drilling for any of the following:

(i) Soil samples.

(ii) Rock samples.

(iii) Pavement samples.

(d) Locating existing features of a building or structure, including existing electrical, mechanical, plumbing and structural members.

8. A person licensed, certified or registered pursuant to title 3, chapter 20 or a person working under the direct supervision of a person certified or qualified pursuant to title 3, chapter 20 to the extent the person is engaged in pest management.

9. Except as provided in subsection D of this section, the sale or installation of finished products, materials or articles of merchandise that are not fabricated into and do not become a permanent fixed part of the structure. This exemption does not apply if a local building permit is required, if the removal of the finished product, material or article of merchandise causes damage to the structure or renders the structure unfit for its intended use or if the total price of the finished product, material or article of merchandise is more than $1,000, including labor but excluding any electrical fixture or appliance that meets all of the following:

(a) Was designed by the manufacturer.

(b) Is unaltered, unchanged or unmodified by any person.

(c) Can be plugged into a common electrical outlet.

10. Employees of the owners of condominiums, townhouses, cooperative units or apartment complexes of four units or less or the owners' management agent or employees of the management agent repairing or maintaining structures owned by them.

11. Any person who engages in the activities regulated by this chapter, as an employee of an exempt property owner or as an employee with wages as the person's sole compensation.

12. A surety company or companies that are authorized to transact business in this state and that undertake to complete a contract on which they issued a performance or completion bond, if construction work is performed by duly licensed contractors.

13. Insurance companies that are authorized to transact business in this state and that undertake to perform repairs resulting from casualty losses pursuant to the provisions of a policy, if construction work is performed by duly licensed contractors.

14. Except as provided in subsection D of this section, any person other than a licensed contractor engaging in any work or operation on one undertaking or project by one or more contracts, for which the aggregate contract price is less than $1,000, including labor, materials and all other items, but excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person and that can be plugged into a common electrical outlet. The work or operations that are exempt under this paragraph must be of a casual or minor nature. This exemption does not apply:

(a) In any case in which the performance of the work requires a local building permit.

(b) In any case in which the work or construction is only a part of a larger or major operation, whether undertaken by the same or a different contractor, or in which a division of the operation is made in contracts of amounts less than $1,000, excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person and that can be plugged into a common electrical outlet.

(c) To a person who utilizes any form of advertising to the public in which the person's unlicensed status is not disclosed by including the words "not a licensed contractor" in the advertisement.

15. A person who is licensed, certified or registered pursuant to title 41, chapter 37, article 4 and who is not otherwise required to be licensed under this chapter or an employee of such person.

16. A person who functions as a gardener by performing lawn, garden, shrub and tree maintenance.

17. Alarm agents as defined in section 32-101.

B. A person who is licensed to perform work in a particular trade pursuant to this chapter is not required to obtain and maintain a separate license for mechanical or structural service work performed within the scope of such trade by such person.

C. Any person who does not have an exemption from licensure pursuant to subsection A, paragraph 14, subdivision (c) of this section is subject to prosecution for a violation of section 44-1522. The attorney general may investigate the act or practice and take appropriate action pursuant to title 44, chapter 10, article 7.

D. The exemptions from licensure pursuant to subsection A, paragraphs 4, 9 and 14 of this section do not apply to either of the following:

1. All fire safety and mechanical, electrical and plumbing work that is done in connection with fire safety installation and fire safety maintenance and repair. For the purposes of this paragraph, "fire safety installation" means hardwired or interconnected smoke alarms and fire sprinklers and does not include an individual device that is attached by a nail, screw or other fastening device to the frame or foundation of any residential unit. For the purposes of this paragraph, fire safety maintenance and repair does not include routine work that is conducted by an employee of an apartment or condominium complex and that is incidental to the fire safety equipment.

2. All work that is done, including the installation, maintenance and repair of devices, appliances or equipment, that involves the connecting to any supply of natural gas, propane or other petroleum or gaseous fuel. Nothing in this paragraph impacts the effect of section 36-1624.01.

E. A joint venture or other combination of persons, firms, partnerships, corporations, associations or other organizations is not required to obtain a separate contractor's license in its own name if all of the following apply:

1. At least one member of the joint venture or combination holds a contractor's license in good standing with the registrar.

2. Each member of the joint venture or combination that acts as a contractor holds a license in good standing with the registrar.

3. Each licensed member of the joint venture or combination only performs work within the scope of that member's contractor's license or licenses.

§ 32-1122 Qualifications for license

A. A contractor's license may be issued only by act of the registrar of contractors. The registrar shall:

1. Classify and qualify applicants for a license.

2. If necessary, change the license classification of a licensee in the case of a title reclassification, with or without a bond rider for the purpose of continuing liability on the bond.

3. Conduct investigations the registrar deems necessary.

4. Establish written examinations to protect the health and safety of the public.

B. To obtain, renew or maintain a license under this chapter, the applicant or licensee shall:

1. Submit to the registrar of contractors a verified application on forms that are prescribed by the registrar of contractors and that contain the following information:

(a) A designation of the classification of license that is sought by the applicant.

(b) If the applicant is a sole proprietorship, the applicant's name and address.

(c) If the applicant is a partnership, the names and addresses of all partners with a designation of any limited partners.

(d) If the applicant is a limited liability company, the names and addresses of all of the following, as applicable:

(i) If the applicant is a manager-managed limited liability company, all managers.

(ii) If the applicant is a member-managed limited liability company, all members.

(iii) All owners of twenty-five percent or more of the stock or beneficial interest.

(e) If the applicant is a corporation, an association or any other organization, the names and addresses of all of the following:

(i) The president, vice president, secretary and treasurer or the names and addresses of the functional equivalent of all of these officers.

(ii) The directors.

(iii) The owners of twenty-five percent or more of the stock or beneficial interest.

(f) The name and address of the qualifying party.

(g) If the applicant is a limited liability company or corporation, an attestation that the limited liability company or corporation is in good standing with the corporation commission.

(h) The address or location of the applicant's place of business and the mailing address if it is different from the applicant's place of business.

(i) An attestation that the applicant has complied with the statutes and rules governing workers' compensation insurance. If the applicant is required by law to secure workers' compensation insurance pursuant to title 23, chapter 6, the attestation must contain the workers' compensation insurance policy number or be accompanied by proof of self-insurance.

(j) If the applicant is a trust, the names and addresses of all trustees.

2. Submit the appropriate fee required under this chapter.

3. Submit and maintain the appropriate bond required under this chapter.

4. Notify the registrar of any change in the information required by this section within thirty days after the change occurs.

C. To obtain, renew or maintain a license under this chapter, each person who is named on a license must not have engaged in contracting without a license or committed any act that, if committed or done by any licensed contractor, would be grounds for suspension or revocation of a contractor's license or be named on a license that was suspended or revoked in this state or another state.

D. To obtain a license under this chapter, a person may not have had a license denied, refused or revoked within one year before the person's application. The registrar may find circumstances behind the denial, refusal or revocation excusable if the applicant's actions did not result in an unremedied hardship or danger or loss to the public. A person who has been convicted of contracting without a license is not eligible to obtain a license under this chapter for one year after the date of the last conviction.

E. Before a license is issued, the qualifying party must:

1. Have a minimum of four years' practical or management trade experience, at least two of which must have been within the last ten years, dealing specifically with the type of construction, or its equivalent, for which the applicant is applying for a license. Technical training in an accredited college or university or in a manufacturer's accredited training program may be substituted for a portion of such experience, but in no case may credited technical training exceed two years of the required four years' experience. The registrar of contractors may reduce the four years' practical or management experience requirement if in the registrar's opinion it has been conclusively shown by custom and usage in the particular industry or craft involved that the four-year requirement is excessive. The registrar shall waive the work experience documentation and verification if the records reflect that the qualifying party is currently or has previously been a qualifying party for a licensee in this state in the same classification and meets all other qualifications.

2. Successfully show, by written examination taken not more than two years before application, if required, qualification in the kind of work for which the applicant proposes to contract, the applicant's general knowledge of the building, safety, health and lien laws of the state, administrative principles of the contracting business and the rules adopted by the registrar of contractors pursuant to this chapter, demonstrate knowledge and understanding of construction plans and specifications applicable to the particular industry or craft and of the standards of construction work and techniques and practices in the particular industry or craft and demonstrate a general understanding of other related construction trades, in addition to any other matters as may be deemed appropriate by the registrar to determine that the qualifying party meets the requirements of this chapter.

F. The registrar shall maintain multiple versions of examinations for each type of license that requires an examination. The registrar shall waive the examination requirement if the records reflect that the qualifying party is currently or has previously been a qualifying party for a licensee in this state in the same classification within the preceding five years.

G. A license may not be issued to a minor, to any partnership in which one of the partners is a minor or to any corporation in which a corporate officer is a minor.

H. Before receiving, renewing and holding a license pursuant to this chapter, the registrar may require a license applicant or licensee to submit to the registrar a full set of fingerprints and the fees required in section 41-1750. The registrar shall submit the fingerprints and fees to the department of public safety for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

§ 32-1123 Unlicensed contractors; contract bidding; license denial; exemptions; warning

A. Except as provided in subsection D of this section, if an entity that is not licensed or not properly licensed pursuant to this chapter bids on a contract for a project with an aggregate worth of more than $1,000, the registrar may not issue the entity a license for one year after the bid date. For the purposes of this subsection, aggregate worth does not include any electrical fixture or appliance that meets all of the following:

1. Was designed by the manufacturer.

2. Is unaltered, unchanged or unmodified by any person.

3. Can be plugged into a common electrical outlet.

4. Does not involve the connection to a supply of natural gas, propane or other petroleum or gaseous fuel.

B. This section does not apply to an entity that bids on a contract for either of the following:

1. A department of transportation project.

2. A project that is subject to the federal acquisition regulation, title 48 Code of Federal Regulations, including the department of defense federal acquisition regulation.

C. This section does not affect the licensing exemptions prescribed in section 32-1121.

D. The registrar shall issue an entity a written warning relating to unlicensed activity if the registrar has not previously issued the entity a warning and if the entity bids on a contract for a project pursuant to subsection A of this section and the project has an aggregate worth of more than $1,000 but less than $20,000, excluding any electrical fixture or appliance that meets all of the following:

1. Was designed by the manufacturer.

2. Is unaltered, unchanged or unmodified by any person.

3. Can be plugged into a common electrical outlet.

4. Does not involve the connection to a supply of natural gas, propane or other petroleum or gaseous fuel.

§ 32-1123.01 Staggered periods of licensure; biennial renewal

A. The registrar shall maintain a system of staggered licensure to distribute the work of licensure throughout the twelve months of the year.

B. The registrar shall implement a system for biennial license renewal and provide for proration of license renewal fees for that purpose.

C. The registrar may grant an exception to the biennial licensing or biennial renewal requirements of this section and may allow an annual renewal based on a written petition by a contractor claiming that the biennial requirements would cause a real and immediate hardship.

§ 32-1124 License issuance; required posting and placement; license suspension

A. When the registrar receives the fee required by this chapter and an application furnishing complete information as required by the registrar, the registrar shall notify the applicant within sixty days after the date of the filing of a complete application of the action taken on the application, and if the registrar determines that the applicant is qualified to hold a license in accordance with this chapter, the registrar shall issue a license to the applicant allowing the applicant to engage in business as a contractor under the terms of this chapter.

B. Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license is nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee on demand. The license number appearing on any licenses held by the licensee must be preceded by the acronym "ROC" and shall be posted or placed as follows:

1. In a conspicuous place on premises where any work is being performed.

2. On all written bids and estimates submitted by the licensee.

3. On all published advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter.

4. On all broadcast, internet or billboard advertising, unless the broadcast, internet or billboard advertising includes a website's uniform resource locator that directly links to a website that prominently displays the licensee's name and license number.

C. A violation of subsection B of this section relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 12, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public.

D. If an application for a license is denied for any reason provided in this chapter, the application fee paid by the applicant is forfeited and shall be deposited pursuant to section 32-1107. A reapplication for a license shall be accompanied by the fee fixed by this chapter.

E. On issuance or renewal of a license, the registrar, at the request of a licensee, shall issue a single license certificate showing all contracting licenses held by the licensee that are currently in good standing and their dates of expiration.

F. The registrar may establish procedures to allow a licensee to establish a common expiration or renewal date for all licenses issued to the licensee and may provide for proration of license fees for that purpose.

G. The registrar may suspend by operation of law a license issued under this chapter if any of the following occurs:

1. The licensed entity is dissolved. The dissolution of the licensed entity includes the death of a sole owner, a change to the partnership by either adding or removing a partner, the revocation or dissolution of corporate authority or the dissolution of a limited liability company or limited liability partnership.

2. The licensed entity does not have authority to do business in this state.

3. The license is obtained or renewed with an insufficient funds check. The license remains suspended until the registrar receives sufficient funds as payment for the license fees and assessments.

§ 32-1124.01 Confidentiality of licensee's or license applicant's personal identifying information; exception

A. Notwithstanding any other law and except as provided in subsection C of this section, the registrar may not release to or make available for inspection by any person any of the following:

1. A licensee's or license applicant's residential address or residential telephone number, unless the registrar determines that disclosure serves the interests of justice and is in the public interest.

2. A licensee's or license applicant's e-mail address, other than to a court or a governmental agency that will use the e-mail address for a legitimate court or governmental purpose.

3. A licensee's or license applicant's social security number, other than to a court or a governmental agency that will use the social security number for a legitimate governmental purpose.

B. The residential address, e-mail address and residential telephone number of a licensee whose license is placed on inactive status are confidential unless the registrar determines that disclosure of this information serves the interests of justice and is in the public interest.

C. Notwithstanding subsections A and B of this section, the registrar may disclose the residential address or residential telephone number of a licensee or license applicant if the residential address or residential telephone number is designated as the business address or business telephone number.

§ 32-1125 Renewal of license; qualifying party

A. Except as provided in section 32-4301, a license issued under this chapter is suspended on the next business day following its renewal date by operation of law. An application for renewal of any current contracting license addressed to the registrar, with a valid bond or cash deposit on file with the registrar, accompanied by the required fee and received by the registrar or deposited in the United States mail postage prepaid on or before the renewal date authorizes the licensee to operate as a contractor until actual issuance of the renewal license. The registrar may refuse to renew a license if a licensee or person has committed or been found guilty of any act listed in section 32-1154.

B. A license that has been suspended by operation of law for failure to renew may be reactivated and renewed within one year of its suspension by filing the required application and paying the application fee in the amount provided for renewal in this chapter in addition to a $50 fee. When a license has been suspended for more than one year for failure to renew, a new application for a license must be made and a new license issued in accordance with this chapter.

C. A licensee may apply in writing to the registrar for exemption from a qualifying party. The licensee must show to the satisfaction of the registrar that during the past five years the licensee:

1. Held a valid and active license and could legally contract under this chapter for the entire five-year period.

2. Did not transfer fifty percent or more of its stock or beneficial interest.

3. Did not commit a violation of section 32-1154, subsection A that has not been remedied.

D. The registrar shall approve or deny the application within thirty days after its receipt. If the application is not approved, the licensee, within thirty days, may request a hearing to be held pursuant to section 32-1156. If the application is approved, the exemption takes effect immediately.

E. A licensee that is exempt from the requirement for a qualifying party pursuant to subsection C of this section may be required by the registrar after a hearing to obtain a qualifying party within sixty days on a finding that:

1. A transfer of ownership of fifty percent or more of the stock, if applicable, or beneficial interest, in the licensee has occurred.

2. A violation of section 32-1154 has occurred.

§ 32-1125.01 Inactive license

A. A contractor may request the registrar, on forms prescribed by the registrar, to inactivate the contractor's current license for a period not to exceed five years at one time by giving written notice to the registrar. The registrar, in the absence of any disciplinary proceeding or disciplinary suspension and on payment of reasonable fees determined by the registrar, may issue to the contractor an inactive license certificate. The inactive license certificate may consist of an endorsement on the contractor's license stating that the license is inactive. The registrar may not refund any of the license renewal fee a contractor paid before requesting inactive status.

B. A contractor's license that is not suspended or revoked and that is inactive may be reactivated as an active license on payment of the current renewal fee and thirty days' written notice to the registrar. An examination may not be required to reactivate an inactive license. If the license is not reactivated within five years, a new application for licensing must be made unless the contractor requests, on forms prescribed by the registrar, to inactivate the license for an additional period not to exceed five years. A contractor may not inactivate the license more than twice.

C. The holder of an inactive license may not practice as a contractor until the license is reactivated as an active license.

D. The inactive status of a contractor's license does not prevent the registrar from taking any disciplinary action against a licensed contractor for any of the grounds stated in this chapter.

§ 32-1126 Fees

A. The license fees prescribed by this chapter are as follows:

1. Application and license fees for an original biennial license:

(a) For general residential contracting and subclassifications of general residential contracting, not more than $500.

(b) For general commercial contracting and subclassifications of general commercial contracting, not more than $1,500.

(c) For general dual licensed contracting, not more than $2,000.

(d) For specialty residential contracting, not more than $350.

(e) For specialty commercial contracting, not more than $1,000.

(f) For specialty dual licensed contracting, not more than $1,350.

2. Biennial license renewal fee:

(a) For general residential contracting and subclassifications of general residential contracting, not more than $320.

(b) For general commercial contracting and subclassifications of general commercial contracting, not more than $1,000.

(c) For general dual licensed contracting, not more than $1,320.

(d) For specialty residential contracting, not more than $270.

(e) For specialty commercial contracting, not more than $900.

(f) For specialty dual licensed contracting, not more than $1,170.

B. The fee for an annual license renewal granted pursuant to section 32-1123.01 is one-half of the biennial license renewal fee.

C. The registrar may establish reasonable fees for services performed by the registrar relating to reexaminations, processing of applications, changes of qualifying party and approval of name changes on licenses.

D. The penalty for failure to apply for renewal of a license within the time prescribed by this chapter is $50.

E. The registrar may establish a separate fee for examination.

F. The registrar may contract with private testing services to establish and administer such examinations and may authorize the payment of the examination fee to the private testing service.

G. Except as provided in section 32-1152, subsection C, a person applying for a contractor license or for renewal of a contractor license to engage in residential contracting shall pay an assessment of not more than $600 during the biennial license period for deposit in the residential contractors' recovery fund established by section 32-1132. If the registrar does not issue the license, the assessment shall be returned to the applicant.

§ 32-1127 Qualifying party; responsibility

A. While engaged as a qualifying party for a licensee, the qualifying party may not take other employment that would conflict with the person's duties as qualifying party or conflict with the person's ability to adequately supervise the work performed by the licensee. Such person may act in the capacity of the qualifying party for one additional licensee if one of the following conditions exists:

1. There is a common ownership of at least twenty-five percent of each licensed entity for which the person acts in a qualifying capacity.

2. One licensee is a subsidiary of another licensee for which the same person acts in a qualifying capacity. For the purposes of this paragraph, "subsidiary" means a corporation of which at least twenty-five percent is owned by the other licensee.

B. While engaged as the qualifying party for a licensee, the qualifying party is responsible for any violation of this chapter by the licensee for licensure regulatory purposes under this chapter. This subsection does not impose personal liability on the qualifying party for a licensee's violation of this chapter.

§ 32-1127.01 Qualifying parties; disassociation with license; requalification

A. If a person who qualified for a license ceases to be connected with the licensee, both the licensee and the qualifying party shall notify the registrar in writing within fifteen days after the disassociation.

B. A licensee shall requalify through another person within sixty days after the date of a disassociation.

C. If a licensee fails to requalify through another person within sixty days, the license is automatically suspended by operation of law at the end of the period until the licensee qualifies through another person.

§ 32-1128 Asbestos educational pamphlet

A. The director of occupational safety and health within the industrial commission with the assistance of the registrar of contractors and the director of the department of environmental quality shall prepare an educational pamphlet relating to asbestos to help contractors identify asbestos in the workplace and to inform them of state and federal asbestos rules and of the health hazards associated with asbestos contact.

B. The registrar shall distribute asbestos educational pamphlets with each contractor's license or license renewal.

§ 32-1129 Apprenticeship programs; certificate of completion; filing with registrar

A. If a person completes a United States department of labor-approved or a department of economic security-approved apprenticeship program in a construction trade, the person or apprenticeship program sponsor may file the certificate of completion and any related updates to the certificate, including documentation for completed continuing education courses, with the registrar in a manner prescribed by the registrar.

B. The registrar shall maintain all documents that are filed pursuant to this section for ten years.

Article 2.1 Residential Contractors' Recovery Fund

§ 32-1131 Definitions

In this article, unless the context otherwise requires:

1. "Assessment" means the contribution by a contractor to the residential contractors' recovery fund.

2. "Fund" means the residential contractors' recovery fund.

3. "Residential contractor" means a contractor as defined in section 32-1101 who is licensed to perform work on residential property pursuant to this chapter and who engages in residential contracting.

§ 32-1132 Residential contractors' recovery fund; claimants; eligibility; definition

A. The residential contractors' recovery fund is established to be administered by the registrar for the benefit of claimants that are damaged by an act, representation, transaction or conduct of a residential contractor that is licensed pursuant to this chapter and that is in violation of this chapter or the rules adopted pursuant to this chapter.

B. Only the following claimants are eligible for an award from the residential contractors' recovery fund:

1. An individual who both:

(a) Owns residential real property that is damaged by the failure of a residential contractor to adequately build or improve a residential structure or appurtenance.

(b) Actually occupies or intends to occupy the residential real property described in subdivision (a) of this paragraph as the individual's primary residence.

2. A limited liability company to which both of the following apply:

(a) The limited liability company owns the residential real property that is damaged by the failure of a residential contractor to adequately build or improve a residential structure or appurtenance.

(b) At least one of the limited liability company's members actually occupy or will occupy the residential real property as described in subdivision (a) of this paragraph as their primary residence.

3. A trust to which all of the following apply:

(a) The trust is a revocable living trust.

(b) The trust owns the residential real property that is damaged by the failure of a residential contractor to adequately build or improve a residential structure or appurtenance.

(c) All of the trust's trustors actually occupy or intend to occupy the residential real property described in subdivision (b) of this paragraph as their primary residence.

4. A planned community as defined in section 33-1802 or unit owners' association as defined in section 33-1202 if both:

(a) The builder or developer transferred control to the planned community as defined in section 33-1802 or unit owners' association as defined in section 33-1202.

(b) A licensed residential contractor's failure to adequately build or improve a residential structure or appurtenance caused damage to the common elements within the complex.

5. A lessee of residential real property that meets all of the following:

(a) Contracts directly with a residential contractor or indirectly with a subcontractor of the residential contractor.

(b) Actually occupies or intends to occupy the residential real property described in subdivision (a) of this paragraph as the lessee's primary residence.

(c) Is damaged by the licensed residential contractor's failure to adequately build or improve a residential structure or appurtenance.

C. In order for a claimant to be eligible for an award from the residential contractors' recovery fund, the contractor whose actions damaged the claimant must have been appropriately licensed at one of the following times:

1. The date that the underlying contract was signed.

2. The date that the first payment was made.

3. The date that the underlying work first commenced.

D. For the purposes of this section, "appropriately licensed" means the residential contractor held a valid residential contractor license that was issued pursuant to this chapter and that was not canceled, in inactive status, expired, suspended or revoked.

§ 32-1132.01 Actual damages; fund; limitations; definition

A. An award from the residential contractors' recovery fund is limited to residential real properties. The fund may not issue an award covering damages to commercial property.

B. An award from the residential contractors' recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor's violation. Actual damages:

1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.

2. Must be established by bids supplied by or the value of work performed by a person that is licensed pursuant to this chapter if the person is required to be licensed pursuant to this chapter.

C. If the claimant paid a deposit or down payment and no actual work is performed or materials are delivered, the claimant's actual damages are the exact dollar amount of the deposit or down payment plus interest at the rate of ten percent a year from the date the deposit or down payment is made, but may not exceed $30,000. Interest may not be paid from the fund on any other awards under this chapter unless ordered by a court of competent jurisdiction.

D. The maximum individual award from the residential contractors' recovery fund is $30,000. An individual claimant may not be awarded more than the maximum individual award.

E. Monies in the residential contractors' recovery fund may not be awarded for attorney fees or costs, except in contested cases appealed to the superior court.

F. If the claimant has recovered a portion of the claimant's loss from sources other than the fund, the registrar shall deduct the amount recovered from other sources from the amount of actual damages suffered pursuant to subsection B of this section and direct the difference, not to exceed $30,000, to be paid from the fund.

G. The claimant may not be the spouse of the residential contractor or the personal representative of the spouse of the residential contractor.

H. For the purposes of this section, "actual damages" means the reasonable cost of completing the contract and repairing the contractor's defective performance, minus the part of the contract price still unpaid.

§ 32-1133 Civil recovery; statute of limitations

A. An action for a judgment that may subsequently result in an order for collection from the residential contractors' recovery fund may not be commenced later than two years after the date of the commission of the act by the contractor that is the cause of the injury or from the date of occupancy.

B. When a claimant commences an action for a judgment that may result in collection from the fund, the claimant must notify the registrar in writing to this effect within thirty calendar days after the commencement of the action. The registrar at any time may intervene in and defend the action.

C. When any claimant recovers a valid judgment against any residential contractor for an act, representation, transaction or conduct that is in violation of this chapter or the rules adopted pursuant to this chapter, the claimant, on twenty days' written notice to the registrar, may apply to the court for an order directing payment out of the fund, of the amount unpaid on the judgment, subject to the limits stated in this article. If the claimant fails to notify the registrar within thirty calendar days after commencement of the action as required by this subsection, the court may direct payment out of the fund on receipt of a consent to payment signed on behalf of the registrar. If the claimant gives notice to the registrar as required by this subsection, the court may direct payment out of the fund either on receipt of a consent to payment signed on behalf of the registrar or, in the absence of any written consent, after the notice period required by this subsection. If the court receives written objections by the registrar, the court may not direct payment from the fund without affording the registrar a reasonable opportunity to present and support the registrar's objections.

D. The court may proceed on an application in a summary manner and, on the hearing, the claimant is required to show that the claimant has done all of the following:

1. Given notice as required by subsections B and C of this section.

2. Obtained a judgment that has become final, as provided in subsection C of this section, stating the amount and the amount owing at the date of the application.

3. Proceeded against any existing bond covering the residential contractor.

E. The court may make an order directed to the registrar requiring payment from the fund of whatever sum it finds to be payable on the claim, in accordance with this section, if the court is satisfied on the hearing of the truth of all matters required to be shown by the claimant by subsection D of this section. The recovery limits established under this article apply to all judgments awarded beginning September 1, 2002. If the claimant has recovered a portion of the claimant's loss from sources other than the fund, the court shall deduct the amount recovered from other sources from the amount of actual damages suffered pursuant to section 32-1132.01, subsection A and direct the difference, not to exceed $30,000, to be paid from the fund.

F. On receipt of a certified copy of the order specified in subsection E of this section, the registrar may authorize payment from the residential contractors' recovery fund even if an appeal has been instituted but not completed.

§ 32-1133.01 Administrative recovery; statute of limitations

A. Notwithstanding any other provision in this chapter, if a contractor license has been revoked or suspended as a result of an order to remedy a violation of this chapter, the registrar may order payment from the residential contractors' recovery fund to remedy the violation.

B. The registrar must serve the contractor with a notice setting forth the amount claimed or to be awarded.

C. If the contractor contests the amount or propriety of the payment, the contractor must respond in writing within ten days after the date of service by requesting a hearing to determine the amount or propriety of the payment. The contractor's failure to respond in writing within ten days after the date of service may be deemed a waiver by the contractor of the right to contest the amount claimed or to be awarded.

D. Service of the notice required by subsection B of this section may be made by personal service to the contractor or by mailing a copy of the notice by certified mail with postage prepaid to the contractor's latest address of record on file in the registrar's office.

E. If service is made by certified mail, it is effective five days after the notice is mailed. Except as provided in section 41-1092.08, subsection H, the contractor or claimant may seek judicial review of the registrar's final award pursuant to title 12, chapter 7, article 6.

F. A claimant to the residential contractors' recovery fund pursuant to this section must show that the claimant has proceeded against any existing bond covering the residential contractor.

G. A claim for payment from the residential contractor's recovery fund must be submitted within two years after all proceedings, reviews and appeals connected with the registrar's final order terminate.

§ 32-1134 Powers and duties of registrar

A. The registrar shall:

1. Establish assessments and maintain the fund balance at a level sufficient to pay operating costs and anticipated claims using the cash basis of accounting.

2. Cause an examination of the fund to be made every three years by an independent certified public accountant.

3. File with the department of insurance and financial institutions an annual statement of the condition of the fund.

4. Employ accountants and attorneys from monies in the fund, but not to exceed $10,000 in any fiscal year, that are necessary for the performance of the duties prescribed in this section.

5. Employ or contract with individuals and procure equipment and operational support, to be paid from or purchased with monies in the fund, but not to exceed in any fiscal year fourteen percent of the total amount deposited in the fund in the prior fiscal year as may be necessary to monitor, process or oppose claims filed by claimants, which may result in collection from the recovery fund.

B. Notwithstanding section 32-1135, the registrar may expend interest monies from the fund to increase public awareness of the fund. This expenditure may not exceed $50,000 in any fiscal year.

§ 32-1134.02 Insufficiency of fund

If at any time the monies deposited in the residential contractors' recovery fund are insufficient to satisfy any duly authorized claim or portion thereof, the registrar shall, when sufficient monies have been deposited in the residential contractors' recovery fund, satisfy any unpaid claims or portion of unpaid claims with priority for payment based on either:

1. The time of filing a certified copy of the court order with the registrar.

2. The date of the administrative order directing payment from the residential contractors' recovery fund.

§ 32-1135 Deposit of assessments

The assessments received by the registrar for deposit in the fund shall be held in trust for carrying out the purposes of the fund. On notice from the registrar, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

§ 32-1137 Notice of authorized payment to claimant

On authorization of payment from the residential contractors' recovery fund, the registrar shall notify the claimant that:

1. The amount authorized for payment is subject to repayment by the claimant if the judgment of the court is finally reversed.

2. It is the responsibility of the claimant to respond to an appeal from the judgment.

3. On appeal from the judgment, postponement of acceptance by the claimant of the amount authorized for payment does not operate as a waiver of any rights of the claimant.

§ 32-1138 Subrogation

The state has the right of subrogation to the extent of payments made from the residential contractors' recovery fund including the right to collect from a bond, cash payment or alternative to cash payment made pursuant to section 32-1152 or 32-1152.01. The registrar and the attorney general shall promptly enforce all subrogation claims.

§ 32-1139 Liability of fund for each residential contractor's license; suspension of license; repayment

A. The liability of the fund shall not exceed two hundred thousand dollars for any one residential contractor's license. If claims against the fund on behalf of any one residential contractor's license exceed two hundred thousand dollars, the claims shall be paid based on a pro rata share of the common liability, and the registrar or a court entering an order for payment after the sum of two hundred thousand dollars has been paid from the fund shall modify the order indicating that no further recovery from the fund shall be allowed.

B. If any amount is paid from the fund in settlement of a claim arising from the act, representation, transaction or conduct of a residential contractor, the license of the contractor shall be automatically suspended by operation of law until the amount paid from the fund is repaid in full, plus interest at the rate of ten per cent a year. Any person who is or was, at the time of the act or omission, named on a license that has been suspended because of a payment from the recovery fund is not eligible to receive a new license or retain another existing license that also shall be suspended by operation of law, nor shall any suspended license be reactivated, until the amount paid from the fund is repaid as provided in this subsection.

C. After receiving an award from the fund pursuant to this article a person is deemed to have assigned to the registrar the person's rights for recovery against the responsible residential contractor licensed pursuant to this chapter to the extent of the person's award from the fund.

§ 32-1140 Disciplinary action against contractor

This article does not limit the authority of the registrar to take disciplinary action against any licensed contractor for a violation of this chapter, or of the rules and regulations of the registrar, nor does the repayment in full of all obligations to the fund by any contractor nullify or modify the effect of any other disciplinary proceeding brought pursuant to this chapter or the rules and regulations.

Article 3 Regulation

§ 32-1151 Engaging in contracting without license prohibited

It is unlawful for any person, firm, partnership, corporation, association or other organization, or a combination of any of them, to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor's license in good standing in the name of the person, firm, partnership, corporation, association or other organization as provided in this chapter, unless the person, firm, partnership, corporation, association or other organization is exempt as provided in this chapter. Evidence of securing a permit from a governmental agency or the employment of a person on a construction project shall be accepted in any court as prima facie evidence of existence of a contract.

§ 32-1151.01 Change in ownership; notice to registrar

A corporation, association or other organization that is a licensed contractor shall immediately notify the registrar of any transfer of ownership of twenty-five percent or more of the stock or beneficial interest in the company.

§ 32-1151.02 List of unlicensed contractors; website publication

A. The registrar shall maintain a list of persons who have been convicted of contracting without a license in violation of section 32-1151 or administratively adjudicated to have been contracting without a license after being issued a civil citation pursuant to section 32-1166.01. The list shall include any known related business names that the persons described in this subsection have used. The list shall be published on the registrar's website.

B. The registrar shall remove a person and any known related business names that person used from the list within ten business days when the person becomes licensed pursuant to this chapter and submits a written request to the registrar requesting the person's name to be removed from the list.

C. If a member of the public requests a copy of the list prescribed by subsection A of this section, the registrar shall provide a copy of the list.

§ 32-1152 Bonds

A. Before granting an original contractor's license, the registrar shall require of the applicant a surety bond in a form acceptable to the registrar or a cash deposit as provided in this section. No contractor's license may be renewed unless the applicant's surety bond or cash deposit is in full force and effect.

B. The bonds, or the cash deposit as provided in this section, shall be in the name of the licensee in amounts fixed by the registrar with the following schedules after giving due consideration to the volume of work and the classification contemplated by the applicant:

1. General commercial building contractors and subclassifications of general commercial contractors shall furnish a surety bond or cash deposit in an amount that is determined as follows:

(a) If the estimated annual volume of construction work of the applicant is $10,000,000 or more, the applicant must furnish a surety bond or cash deposit of not less than $50,000 or more than $100,000.

(b) If the estimated annual volume of construction work of the applicant is more than $5,000,000 and less than $10,000,000, the applicant shall furnish a surety bond or cash deposit of not less than $35,000 or more than $75,000.

(c) If the estimated annual volume of construction work of the applicant is more than $1,000,000 and less than $5,000,000, the applicant shall furnish a surety bond or cash deposit of not less than $15,000 or more than $50,000.

(d) If the estimated annual volume of construction work of the applicant is more than $500,000 and less than $1,000,000, the applicant shall furnish a surety bond or cash deposit of not less than $10,000 or more than $25,000.

(e) If the estimated annual volume of construction work of the applicant is more than $150,000 and less than $500,000, the applicant shall furnish a surety bond or cash deposit of not less than $5,000 or more than $15,000.

(f) If the estimated annual volume of construction work of the applicant is less than one hundred fifty thousand dollars, the applicant shall furnish a surety bond or cash deposit of five thousand dollars.

2. Specialty commercial contractors shall furnish a surety bond or cash deposit in an amount that is determined as follows:

(a) If the estimated annual volume of construction work of the applicant is $10,000,000 or more, the applicant shall furnish a surety bond or cash deposit of not less than $37,500 or more than $50,000.

(b) If the estimated annual volume of construction work of the applicant is more than $5,000,000 and less than $10,000,000, the applicant shall furnish a surety bond or cash deposit of not less than $17,500 or more than $37,500.

(c) If the estimated annual volume of construction work of the applicant is more than $1,000,000 and less than $5,000,000, the applicant shall furnish a surety bond or cash deposit of not less than $7,500 or more than $25,000.

(d) If the estimated annual volume of construction work of the applicant is more than $500,000 and less than $1,000,000, the applicant shall furnish a surety bond or cash deposit of not less than $5,000 or more than $17,500.

(e) If the estimated annual volume of construction work of the applicant is more than $150,000 and less than $500,000, the applicant shall furnish a surety bond or cash deposit of not less than $2,500 or more than $7,500.

(f) If the estimated annual volume of construction work of the applicant is less than $150,000, the applicant shall furnish a surety bond or cash deposit of $2,500.

3. The total amount of the surety bond or cash deposit required of a licensee who holds more than one license under paragraphs 1 and 2 of this subsection is the sum of the surety bond or cash deposit required for each license based on the estimated annual volume of construction work of the applicant allocated to and performed under each license. The applicant at his option may post a single surety bond or cash deposit that is the sum of the bonds or deposits determined under this subsection for all such licenses.

4. General dual licensed contractors and subclassifications of general dual licensed contractors shall furnish a single surety bond or cash deposit with amounts for each classification of license that are determined based on the volume of commercial work as determined under paragraph 1 of this subsection and the volume of residential work as determined under paragraph 5 of this subsection. Liability under the bond or cash deposit is limited to the amount established for each commercial or residential license and is subject to the limits and requirements set forth in subsection E of this section.

5. General residential contractors and subclassifications of general residential contractors shall furnish a surety bond or cash deposit in an amount of not more than $15,000 and not less than $5,000.

6. Specialty dual licensed contractors shall furnish a single surety bond or cash deposit with amounts for each classification of license that are determined based on the volume of commercial work as determined under paragraph 2 of this subsection and the volume of residential work as determined under paragraph 7 of this subsection. Liability under the bond or cash deposit is limited to the amount established for each commercial or residential license and is subject to the limits and requirements set forth in subsection E of this section.

7. Specialty residential contractors shall furnish a surety bond or cash deposit in an amount of not more than $7,500 and not less than $1,000.

8. Dual licensed swimming pool contractors and residential swimming pool general contractors shall furnish a surety bond or cash deposit in the same amounts based on the volume of work as determined under paragraph 1 of this subsection for a general commercial contractor.

C. Dual licensed contractors and residential contractors shall also either:

1. Furnish an additional surety bond or cash deposit in the amount of $200,000 solely for actual damages suffered by claimants as described in section 32-1132. This bond is subject to the limits on the amounts that may be awarded to individual claimants as established in section 32-1132.

2. Participate in the residential contractors' recovery fund and pay the assessment prescribed by section 32-1126, subsection G.

D. The surety bonds shall be executed by the contractor as principal with a corporation duly authorized to transact surety business in this state. Evidence of a surety bond shall be submitted to the registrar in a form acceptable to the registrar. The contractor in the alternative may establish a cash deposit in the amount of the bond with the state treasurer in accordance with rules adopted by the registrar. Such cash bond monies shall be deposited, pursuant to sections 35-146 and 35-147, in the contractors' cash bond fund. The state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the state general fund. Such cash deposits may be withdrawn, if there are no outstanding claims against them, two years after the termination of the license in connection with which the cash is deposited. The cash deposit may be withdrawn two years after the filing of a commercial surety bond as a replacement to the cash deposit.

E. The bonds or deposit required by subsection B of this section are for the benefit of and are subject to claims by the registrar of contractors for failure to pay any sum required pursuant to this chapter. The bond or deposit required by subsection B, paragraphs 1, 2 and 3 of this section is for the benefit of and subject to claims by a licensee under this chapter or a lessee, owner or co-owner of nonresidential real property including, but not limited to, a tenant in common or joint tenant, or their successors in interest, who has a direct contract with the licensee against whose bond or deposit the claim is made and who is damaged by the failure of the licensee to build or improve a structure or appurtenance on that real property at the time the work was performed in a manner not in compliance with the requirements of any building or construction code applicable to the construction work under the laws of this state or any political subdivision, or if no such code was applicable, in accordance with the standards of construction work approved by the registrar. The residential bond or deposit required by subsection B, paragraphs 4 through 8 of this section is for the benefit of and subject to claims by any person furnishing labor, materials or construction equipment on a rental basis used in the direct performance of a construction contract involving a residential structure or by claimants as described in section 32-1132. The bond or deposit required by subsection C, paragraph 1 of this section is for the benefit of and is subject to claims only by claimants as described in section 32-1132. The person seeking recovery from the bond or cash deposit shall maintain an action at law against the contractor if claiming against the cash deposit or against the contractor and surety if claiming against the surety bond. If the person seeking recovery is required to give the notice pursuant to section 33-992.01, he is entitled to seek recovery only if he has given such notice and has made proof of service. The surety bond or cash deposit is subject to claims until the full amount thereof is exhausted. The court may award reasonable attorney fees in a judgment against a contractor's surety bond or cash deposit. A suit may not be commenced on the bond or for satisfaction from the cash deposit after the expiration of two years following the commission of the act or delivery of goods or rendering of services on which the suit is based, except that time for purposes of claims for fraud is measured as provided in section 12-543. The surety bond or cash deposit shall be continuous in form and conditioned so that the total aggregate liability of the surety or cash deposit for all claims, including reasonable attorney fees, is limited to the face amount of the surety bond or cash deposit irrespective of the number of years the bond or cash deposit is in force. If the corporate surety desires to make payment without awaiting court or registrar action, the amount of any bond filed in compliance with this chapter shall be reduced to the extent of any payment or payments made by the corporate surety in good faith thereunder. Any such payments shall be based on priority of written claims received by the corporate surety before court or registrar action. If more than one cash deposit exists, the judgment against the contractor shall state which cash deposit is used to satisfy the judgment. A certified copy of the judgment shall then be filed with the registrar, and such judgment must specify that it may be satisfied from the contractor's cash deposit. Priority for payment is based on the time of filing with the registrar. On receipt of a certified copy of the judgment or on a final disciplinary order of the registrar, the registrar may authorize payment from the cash deposit of the amount claimed or of whatever lesser amount remains on file. In any action against a cash deposit, the claimant, at the time of filing suit, may notify the registrar in writing of the action against the cash deposit, but may not name as a defendant in the action the registrar, the treasurer or the state. A claimant's failure to notify the registrar at the time of filing suit may result in the cash deposit being withdrawn by the licensee before judgment pursuant to subsection D of this section.

F. When a corporate surety cancels a bond, the surety, not less than thirty days before the effective date of the cancellation, shall give the principal and the registrar a written notice of the cancellation. Notice to the principal shall be by certified mail in a sealed envelope with postage fully prepaid. Proof of notice to the principal shall be made available to the registrar on request. On reduction or depletion of the cash deposit, the registrar shall immediately notify the licensee of said reduction or depletion and that the licensee must replenish the cash deposit or furnish a surety bond on or before thirty days from the date of said reduction or depletion or the contractor's license is suspended on the thirtieth day without further notice or hearing. Notice to the contractor shall be by certified mail in a sealed envelope with postage fully prepaid thereon, addressed to the contractor's latest address of record in the registrar's office. The contractor's license is suspended by operation of law on the date the bond is canceled or thirty days from the date of reduction or depletion of the cash deposit unless a replacement bond or cash deposit is on file with the registrar.

G. The registrar and the state treasurer have no personal liability for the performance of duties relating to the bonds, cash deposits, certificates of deposit, investment certificates or share accounts required or permitted by this chapter as long as such duties are performed in good faith.

H. In the following instances the registrar, after a hearing, may require, as a condition precedent to issuance, renewal, continuation or removal of suspension of a license, a surety bond or cash deposit in an amount and duration to be fixed by the registrar based on the seriousness of the violations, which may not be more than ten times the amount required by subsection B of this section:

1. When a license of either the applicant or the qualifying party has been suspended or revoked or a surety bond or cash deposit requirement has been increased under section 32-1154 previously as the result of disciplinary action for a violation of this chapter.

2. When either the applicant or qualifying party was an officer, member, partner or qualifying party for a licensee at any time during which cause for disciplinary action occurred resulting in suspension or revocation of such licensee's license and such applicant or qualifying party had knowledge of or participated in the act or omission that was the cause of such disciplinary action for a violation of this chapter.

3. The bonds required by this subsection are in addition to any other bond or cash deposit required by this chapter or any other bond required of a contractor by an owner or any other contracting party on any contract undertaken by him pursuant to the authority of such license.

§ 32-1152.01 Alternatives to cash deposit

A. As an alternative to the cash deposit provided for in section 32-1152, subsection B, a contractor may substitute any of the following:

1. Certificates of deposit assigned to the registrar, issued by banks doing business in this state and insured by the federal deposit insurance corporation.

2. Investment certificates or share accounts assigned to the registrar and issued by a savings and loan association doing business in this state and insured by the federal deposit insurance corporation.

B. The terms and conditions surrounding each of such types of security may be prescribed by the registrar.

§ 32-1153 Proof of license as prerequisite to civil action

No contractor as defined in section 32-1101 shall act as agent or commence or maintain any action in any court of the state for collection of compensation for the performance of any act for which a license is required by this chapter without alleging and proving that the contracting party whose contract gives rise to the claim was a duly licensed contractor when the contract sued upon was entered into and when the alleged cause of action arose.

§ 32-1154 Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty

A. The holder of a license or any person named on a license pursuant to this chapter may not commit any of the following acts or omissions:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

2. Departure from or disregard of:

(a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

(b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

3. Violation of any rule adopted by the registrar.

4. Failure to comply with the statutes or rules governing social security, workers' compensation or unemployment insurance.

5. Misrepresentation of a material fact by the applicant in obtaining a license.

6. The doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured. For the purposes of this paragraph, "fraudulent act" means a material misrepresentation that a licensee makes, that is relied on by another person and that results in damage to that person or that person's property.

7. Conviction of a felony.

8. Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

9. Attempting to evade this chapter by:

(a) Aiding or abetting a licensed or unlicensed person.

(b) Acting or conspiring with a licensed or unlicensed person.

(c) Allowing one's license to be used by a licensed or unlicensed person.

(d) Acting as agent, partner, associate or otherwise of a licensed or unlicensed person.

10. Failure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

11. Failure of a contractor to comply with any safety or labor laws or codes of the federal government, this state or political subdivisions of this state.

12. Failure in any material respect to comply with this chapter.

13. Knowingly entering into a contract with a contractor for work to be performed for which a license is required with a person that is not duly licensed in the required classification.

14. Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth on the license.

15. False, misleading or deceptive advertising whereby any member of the public was misled and injured.

16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

17. Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.

18. Failure to notify the registrar in writing within a period of fifteen days of any disassociation of the person who qualified for the license. The licensee must qualify through another person within sixty days after the date of disassociation.

19. Subsequent discovery of facts that if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of the license.

20. Having a person named on the license who is or was named on any other license in this state or in another state that is under suspension or revocation for any act or omission that occurs while the person is or was named on the license unless the prior revocation was based solely on a violation of this paragraph.

21. Continuing a new single-family residential construction project with actual knowledge that a pretreatment wood-destroying pests or organisms application was either:

(a) Not performed at the required location.

(b) Performed in a manner inconsistent with label requirements, state law or rules.

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive. A license may not be revoked or suspended nor may any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

23. Prohibit, threaten to prohibit, retaliate against, threaten to retaliate against or otherwise intimidate any contractor or materialman from serving a preliminary notice pursuant to section 33-992.01.

24. For contractors, failure to comply with title 44, chapter 11, article 11.

B. The registrar:

1. May investigate the acts of a contractor in this state on the registrar's own motion.

2. Shall investigate the acts of a contractor in this state on the written complaint of any owner or contractor that is a party to a construction contract or a person who suffers a material loss or injury as a result of a contractor's failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards. For the purposes of this paragraph:

(a) "Construction contract" means a written or oral agreement relating to the construction, alteration, repair, maintenance, moving or demolition of any building, structure or improvement or relating to the contractor's excavation of or other development or improvement to land if the registrar investigates the contractor's actions under this subsection.

(b) "Owner" means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that causes a building, structure or improvement to be constructed, altered, repaired, maintained, moved or demolished or that causes land to be excavated or otherwise developed or improved, whether the interest or estate of the person is in fee, as vendee under a contract to purchase, as lessee or another interest or estate less than fee, pursuant to a construction contract.

3. May temporarily suspend, with or without imposition of specific conditions in addition to increased surety bond or cash deposit requirements, or permanently revoke any or all licenses issued under this chapter if the holder of the license issued pursuant to this chapter is guilty of or commits any of the acts or omissions set forth in subsection A of this section.

C. Pursuant to this chapter, the registrar shall suspend by operation of law a license issued to a person under this chapter on notice from the department of revenue that a tax debt related to income taxes, withholding taxes or any tax imposed or administered by title 42, chapter 5 that was incurred in the operation of the licensed business has become final and the person neglects to pay or refuses to pay the tax debt.

D. The expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee does not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such a licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such a license.

E. The registrar may impose a civil penalty of not to exceed $500 on a contractor for each violation of subsection A, paragraph 22 of this section. Civil penalties collected pursuant to this subsection shall be deposited in the residential contractors' recovery fund. The failure by the licensee to pay any civil penalty imposed under this subsection results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. A person who is or was named on a license of a contractor when an act or omission occurs that results in a civil penalty may not receive a new license under this chapter until the entire civil penalty is paid.

F. The registrar may impose a civil penalty of not to exceed $1,000 on a contractor for each violation of subsection A, paragraph 17 of this section. Civil penalties collected pursuant to this subsection shall be deposited in the residential contractors' recovery fund. The failure by the licensee to pay any civil penalty imposed under this subsection results in the automatic permanent revocation of the license thirty days after the effective date of the order providing for the civil penalty. A person who is or was named on a license of a contractor when an act or omission occurs that results in a civil penalty may not receive a new license under this chapter until the entire civil penalty is paid.

§ 32-1155 Filing of complaint; resolution of complaint; service of notice; failure to answer; prohibited citations

A. On the filing of a written complaint with the registrar charging a licensee with the commission of an act that is cause for suspension or revocation of a license, including an act that is in violation of title 44, chapter 11, article 11, the registrar after investigation, in its sole discretion, may issue a citation directing the licensee, within ten days after service of the citation on the licensee, to appear by filing with the registrar the licensee's written answer to the citation and complaint showing cause, if any, why the licensee's license should not be suspended or revoked. The complaint must be filed within the statute of limitations prescribed by 32-1162.

B. Service of the citation on the licensee is fully effected by personal service or by mailing a true copy thereof, together with a true copy of the complaint, by certified mail in a sealed envelope with postage prepaid and addressed to the licensee at the licensee's latest address of record in the registrar's office. Service of the citation and complaint is complete at the time of personal service or five days after deposit in the mail.

C. Failure of the licensee to answer within ten days after service may be deemed an admission by the licensee of the licensee's commission of the act or acts charged in the complaint, and the registrar may then suspend or revoke the licensee's license unless the registrar determines, in its sole discretion, that the failure to answer within such period is attributable to excusable neglect on the part of the licensee.

D. The registrar may not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either:

1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar.

2. The contractor's work has been subject to neglect, modification or abnormal use.

E. Notwithstanding subsection D of this section, the registrar may investigate the complaint without waiting fifteen days.

§ 32-1156 Hearings

A. Title 41, chapter 6, article 10 applies to hearings under this chapter.

B. In a hearing or rehearing conducted pursuant to this section a company may be represented by an officer or employee who is not a member of the state bar if both:

1. The company has specifically authorized the officer or employee to represent it.

2. The representation is not the officer's or employee's primary duty to the company but is secondary to the officer's or employee's duties relating to the management or operation of the company.

§ 32-1156.01 Restitution; prohibition

A. After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.

B. A restitution award made pursuant to this section may not include attorney fees.

§ 32-1157 Appeals; costs; transcript

A. Except as provided in section 41-1092.08, subsection H, a final decision of the registrar may be appealed to the superior court pursuant to title 12, chapter 7, article 6.

B. The party who is appealing may request in writing and shall receive from the registrar a certified copy of all documents and evidence in the administrative record. The party shall pay the registrar for the cost of producing the administrative record. Within thirty days after receipt of the request and payment, the registrar shall certify the administrative record and file it with the clerk of the superior court in the county in which the appeal is pending.

C. By order of the court or by stipulation of the parties to the action, the record may be shortened or supplemented.

D. If the appeal is from an action instituted by the registrar and the court determines that the appellant is the successful party in the appeal, the appealing party is entitled to recover from the registrar any monies paid by the appealing party for transcriptions or for copies of documents provided by the registrar.

§ 32-1158 Contract requirements; provision of documents and receipt at contract signing

A. Any contract in an amount of more than $1,000 entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:

1. The name of the contractor and the contractor's business address and license number.

2. The name and mailing address of the owner and the jobsite address or legal description.

3. The date the parties entered into the contract.

4. The estimated date of completion of all work to be performed under the contract.

5. A description of the work to be performed under the contract.

6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1162, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten-point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

B. When a contractor and an owner sign a contract, the contractor shall provide the owner with a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner.

C. The requirements of this section are not prerequisites to the formation or enforcement of a contract. Failure to comply with the requirements of this section does not constitute a defense by either party to an action for compensation, damages, breach, enforcement or other cause of action based on the contract.

§ 32-1158.01 Swimming pool; spa; construction contracts

A. In addition to the requirements of section 32-1158, a licensed contractor who enters into a contract for the construction or installation of a residential in-ground swimming pool or spa with a purchaser who resides in the residence or who intends to reside in the residence after the completion of the contract shall include at least the following provisions:

1. A provision providing the purchaser the opportunity to request standard contractor's payment and performance bonds in a form approved by the registrar, securing the completion of the work and payment for services and materials. The cost of the payment and performance bond shall be paid by the purchaser of the swimming pool or spa and the contractor shall not charge a surcharge or a service charge.

2. The following payment provisions:

(a) A down payment payable on the execution of the contract of not more than fifteen percent of the original contract price.

(b) After the completion of the excavation work on the swimming pool or spa, a payment of not more than twenty-five percent of the amount of the original contract price plus any written change orders approved by the purchaser.

(c) After the installation of steel, plumbing and pneumatically applied concrete materials or the installation of a prefabricated swimming pool or spa, a payment of not more than twenty-five percent of the amount of the original contract price plus any written change orders approved by the purchaser.

(d) After the installation of decking materials, a payment of not more than twenty-five percent of the amount of the original contract price plus any written change orders approved by the purchaser.

(e) Before the application of the finishing interior materials or completion of all work on a prefabricated pool or spa, payment of all remaining sums due on the original contract plus any written change orders approved by the purchaser.

3. A provision that gives notice to the purchaser, in a form that is approved by the registrar and that is in at least ten point type, of the purchaser's right to receive written material that advises the purchaser of the provisions of this section and of the procedures provided for by the registrar for the resolution of claims and disputes with licensed contractors.

4. A provision in a form that is approved by the registrar and that is in at least ten point type, advising the purchaser of the purchaser's rights under title 44, chapter 15.

B. If a purchaser requires the contractor to furnish a payment and performance bond securing the performance of the contract, the contract provisions required by subsection A, paragraph 2 of this section may be changed in any manner agreed to by the parties to the contract.

C. Any changes, additions or deletions to the work specified in the original contract shall be included in a written change order.

D. A contractor's failure to comply with this section is a violation of section 32-1154, subsection A.

§ 32-1158.02 Residential construction contracts

A. For residential repair or replacement of damage resulting directly from a catastrophic storm in a specific area that is designated by an insurer, in addition to the requirements of section 32-1158, a licensed contractor who enters into a contract for the repair or replacement of a residential roof or other repair or replacement within the scope of the regulation of this chapter with a purchaser who resides in the residence or who intends to reside in the residence after the completion of the contract shall include at least the following provisions:

1. A statement in at least ten-point bold type in substantially the following form: "You may cancel this contract at any time within seventy-two hours after you have been notified that your insurer has denied your claim to pay for the goods and services to be provided under this contract."

2. A statement in at least ten-point bold type in substantially the following form: "You may cancel this contract at any time, for any reason, within four business days after signing this contract."

3. A copy of a repair estimate that contains the following disclosures:

(a) A precise description and location of all damage claimed on the repair estimate.

(b) For roofing repair or replacement, a detailed description of the work to be done including the square footage of the repair area or the replacement area.

(c) If the damaged areas are not included in the repair estimate, a specification of those areas and any reason for their exclusion from the repair estimate.

(d) Whether or not the property was inspected before the preparation of the estimate and the nature of that inspection, specifically whether the roof was physically accessed.

(e) That a contractor has made no assurances that the claimed loss will be covered by an insurance policy.

(f) That the policyholder is responsible for payment for any work performed if the insurer should deny payment or coverage for any part of the loss.

B. A residential owner of a property or casualty insurance policy has the right to cancel the contract described in subsection A of this section within seventy-two hours after the insured owner has been notified by the insurer that the claim has been denied.

C. In addition to the right prescribed in subsection B of this section, the insured owner of a residence has the right to cancel the contract described in subsection A of this section for any reason within four business days after signing the contract. A cancellation shall be evidenced by the insured owner giving written notice of cancellation to the contractor's address stated in the contract. Notice of cancellation does not need to be in a particular form except that the notice must indicate in writing the intent of the insured owner not to be bound by the contract.

D. Within ten days after a contract has been canceled pursuant to this section, the contractor must tender to the insured owner any payments made by the insured owner and any note or other evidence of indebtedness except that if the contractor has performed any emergency services, the contractor is entitled to receive reasonable compensation for the services if the insured owner has received a detailed description and itemization of the charges for those services.

E. The down payment section on the execution of a contract entered into pursuant to this section shall not require more than fifty per cent of the total contract.

F. Any changes, additions or deletions to the work order specified in the original contract shall be included in a written change order that is signed by the homeowner.

G. A contractor shall immediately notify and disclose in writing to the residential owner of a property or casualty insurance policy any cancellation of the contractor's workers' compensation coverage.

H. A contractor's failure to comply with this section is grounds for license suspension or revocation pursuant to section 32-1154.

I. An individual or contractor who prepares a repair estimate for post-storm repair or replacement services as described in subsection A of this section in anticipation of making an insurance claim must disclose the following information to the insured owner:

1. A precise description and location of all damage claimed or included on the repair estimate.

2. Documentation to support the damage claimed on the estimate, including photographs, digital images or another medium.

3. A detailed description and itemization of any emergency repairs already completed by the contractor.

4. If damaged areas are not included in the repair estimate, a specification of those areas and any reason for their exclusion from the repair estimate.

5. A provision stating whether or not the property was inspected before the preparation of the estimate, if the contract is a contract for repair or replacement of a roof, and whether the roof was physically accessed.

6. A provision stating that the contractor has made no assurances that the claimed loss will be covered by an insurance policy.

J. If an insured owner submits a claim with the insurer for residential repair or replacement pursuant to this section, the contractor may not begin work on the repair or replacement until the insurer approves or denies the claim except if the work is necessary to prevent further loss.

K. A person who is not licensed pursuant to this chapter and who is not exempt from licensure pursuant to this chapter may not bring a private cause of action to recover monies from a homeowner for any residential repair or replacement that the person does pursuant to this section.

L. Except as otherwise provided in this subsection, a contractor providing post-storm repair or replacement contracting services shall not act on behalf of an insured owner in negotiating for the settlement of a claim for loss or damage under any policy of insurance covering the insured owner's residence and shall not make any assurance that the proposed repair or replacement contracting services will be covered by an insurance policy. The contractor may communicate with an insurer to assist in any claim disputes, including actual damages incurred, if both of the following apply:

1. The insured owner gives the contractor permission.

2. The contractor is not compensated for the communication.

M. With a policyholder's written consent, an insurer providing coverage for a post-storm residential repair or replacement may issue its check in the name of both the policyholder and the contractor with the contractor's license number issued pursuant to this chapter noted on the check.

N. This section shall not limit the following individuals from contacting and negotiating with the insured owner:

1. A government official engaged in the performance of official duties.

2. An attorney engaged in the performance of professional duties.

3. Licensed insurers and licensed insurance producers while engaged in the performance of their duties in connection with insurance transactions.

4. Any salaried office employee performing exclusively clerical or administrative duties and who is not compensated in any manner for securing contracts related to post-storm residential repair or replacement contracting.

5. Photographers, estimators, appraisers or engineers employed exclusively for the purpose of furnishing technical assistance.

6. A private investigator who is licensed pursuant to chapter 24 of this title.

7. A full-time salaried employee of a property owner or property management company who is retained by a property owner, who has not been hired for the purpose of handling a specific claim resulting from a fire or casualty loss and who acts at the sole discretion of the property owner or management company regarding a claim related to the owner's property.

§ 32-1159 Indemnity agreements in construction and architect-engineer contracts void; definitions

A. A covenant, clause or understanding in, collateral to or affecting a construction contract or architect-engineer professional service contract that purports to indemnify, to hold harmless or to defend the promisee from or against liability for loss or damage resulting from the sole negligence of the promisee or the promisee's agents, employees or indemnitee is against the public policy of this state and is void.

B. Notwithstanding subsection A, a contractor who is responsible for the performance of a construction contract may fully indemnify a person for whose account the construction contract is not being performed and who, as an accommodation, enters into an agreement with the contractor that permits the contractor to enter on or adjacent to its property to perform the construction contract for others.

C. This section applies to all contracts entered into between private parties. This section does not apply to:

1. Agreements to which this state or a political subdivision of this state is a party, including intergovernmental agreements and agreements governed by sections 34-226 and 41-2586.

2. Agreements entered into by agricultural improvement districts under title 48, chapter 17.

D. In this section:

1. "Architect-engineer professional service contract" means a written or oral agreement relating to the design, design-build, construction administration, study, evaluation or other professional services furnished in connection with any actual or proposed construction, alteration, repair, maintenance, moving, demolition or excavation of any structure, street or roadway, appurtenance or other development or improvement to land.

2. "Construction contract" means a written or oral agreement relating to the construction, alteration, repair, maintenance, moving, demolition or excavation or other development or improvement to land.

§ 32-1159.01 Indemnity agreements in construction and architect-engineer dwelling contracts void; definitions

A. Notwithstanding section 32-1159, a covenant, clause or understanding in, collateral to or affecting a construction contract or architect-engineer professional service contract involving a dwelling that purports to insure, to indemnify or to hold harmless the promisee from or against liability for loss or damage is against the public policy of this state and is void only to the extent that it purports to insure, to indemnify or to hold harmless the promisee from or against liability for loss or damage resulting from the negligence of the promisee or the promisee's indemnitees, employees, subcontractors, consultants or agents other than the promisor.

B. Notwithstanding subsection A of this section, a contractor who is responsible for the performance of a construction contract may fully indemnify a person for whose account the construction contract is not being performed and who, as an accommodation, enters into an agreement with the contractor that allows the contractor to enter on or adjacent to its property to perform the construction contract for others.

C. Any additional insured endorsement furnished pursuant to an agreement or collateral to a construction contract involving a dwelling does not obligate the insurer to indemnify the additional insured for the percentage of fault that is allocated to the additional insured. This subsection does not limit an insurer's duty to defend an additional insured pursuant to the terms and conditions of an additional insured endorsement.

D. A covenant, clause or understanding in, collateral to or affecting a construction contract or architect-engineer professional service contract that requires the promisor to defend the promisee is limited to defending claims arising out of or related to the promisor's work or operations.

E. This section applies to all construction contracts and architect-engineer professional service contracts involving a dwelling entered into between private parties.

F. This section does not apply to:

1. An agreement to which this state or a political subdivision of this state is a party, including an intergovernmental agreement and an agreement governed by sections 34-226 and 41-2586.

2. Agreements entered into by agricultural improvement districts under title 48, chapter 17.

3. An agreement for indemnification of a surety on a payment or performance bond by its principal or indemnitors.

4. An agreement between an insurer under an insurance policy or contract and its named insureds.

5. An agreement between an insurer under an insurance policy or contract and its additional insureds, except that this type of agreement is subject to the limitations of subsections A, B and C of this section.

6. An agreement between an insurer and its insureds under a single insurance policy or contract for a defined project or workplace, except that such agreement may not require or allow one or more insureds under the agreement to indemnify, to hold harmless or to defend any other insured under the agreement beyond the limitations of subsections A, B and C of this section.

7. A public service corporation's rules, regulations or tariffs that are approved by the corporation commission.

G. For the purposes of this section:

1. "Architect-engineer professional service contract" means a written or oral agreement relating to the survey, design, design-build, construction administration, study, evaluation or other professional services furnished in connection with any actual or proposed construction, alteration, repair, maintenance, moving, demolition or excavation of any structure, street or roadway, appurtenance or other development or improvement to land.

2. "Construction contract" means a written or oral agreement relating to the actual or proposed construction, alteration, repair, maintenance, moving, demolition or excavation of any structure, street or roadway, appurtenance or other development or improvement to land.

3. "Dwelling" has the same meaning prescribed in section 12-1361.

§ 32-1160 Claim for termite damages; notice and offer of settlement; applicability; definition

A. At least thirty days before filing suit against a contractor for money damages resulting from termites, a claimant shall give written notice to that contractor at that contractor's last known address, specifying in reasonable detail the facts that are the subject of the complaint. Within ten days after the date the contractor receives the notice, the contractor may request an opportunity to inspect the premises and may make a written offer to the claimant that may include an agreement by the contractor to inspect, treat, repair or have repaired at the contractor's expense any area damaged by the termites and shall describe in reasonable detail the kind of repairs or treatment offered. If accepted, the repairs or treatment shall be made within forty-five days after the date the contractor receives written notice of acceptance of the offer of compromise, unless completion is delayed by the claimant or by other events beyond the control of the contractor. Failure to provide a written notice or refusal to allow a contractor to inspect the premises for termite damage and provide a retreatment program shall create a rebuttable presumption that the damages could have been mitigated.

B. The notice prescribed by subsection A is not required if the claimant must file suit at an earlier date to prevent expiration of the statute of limitations or if the complaint is asserted as a counterclaim.

C. This section does not create an implied warranty or extend any limitation period. This section applies only to a claim for money damages to a residence or an appurtenance to a residence resulting from termites and for which suit is filed after the effective date of this section.

D. For purposes of this section "contractor" means a person or entity, including any subsidiaries, parents, partners or affiliates, that contracts with a claimant for the construction or sale of a new residence constructed by that person or entity, or for an alteration of or addition to an existing residence, repair of a new or existing residence, or construction, sale, alteration, addition or repair of an appurtenance to a new or existing residence.

§ 32-1161 Rights of contractor after suspension of license

A. After suspending the license on any of the grounds set forth in section 32-1154, the registrar shall renew it on proof of compliance by the contractor with provisions of the judgment relating to renewal of the license, or in the absence of a judgment or provisions therein as to renewal, on proper showing that all loss caused by the act or omission for which the license was suspended has been fully satisfied.

B. After suspending the license pursuant to section 32-1154, the licensee may perform, without compensation, warranty work or other corrective work.

C. After revoking a license on any of the grounds set forth in section 32-1154, the license may not be renewed or reissued for one year after final determination of revocation and then only on proper showing that all loss caused by the act or omission for which the license was revoked has been fully satisfied. For the purposes of this subsection, a proper showing may be made by demonstrating, to the satisfaction of the registrar, that the licensee exhausted all reasonable means to remedy the underlying loss caused by the act or omission.

§ 32-1162 Statute of limitations; remedy violations

A. A person may file a written complaint pursuant to section 32-1155 with the registrar alleging a licensee has committed a violation of this chapter. The complaint must be filed:

1. For new home builds or other new building construction, within two years after the earlier of the close of escrow or actual occupancy.

2. For all other projects, within two years after the completion of the specific project.

B. For licensure regulatory purposes under this chapter, a licensee's qualifying party is responsible for any violation of this chapter committed by the licensee during the period of time that the qualifying party is named on the license. This subsection does not impose personal liability on the qualifying party for a licensee's violation of this chapter.

C. For licensure regulatory purposes under this chapter, a person named on a license is responsible for any violation of this chapter committed by the licensee during the period of time that person was named on the license. This subsection does not impose personal liability on a person named on a license for a licensee's violation of this chapter.

D. A licensee doing business as a sole proprietor may be personally liable to the registrar for the purposes of enforcing this chapter, including subrogation proceedings brought by this state pursuant to section 32-1138.

§ 32-1163 Effect of chapter upon federal aid contracts

If any provision or condition contained in this chapter conflicts with any provision of federal law, or a rule or regulation made under federal law pertaining to federal aid contracts, such provision in conflict with the federal law, rule or regulation shall not apply on federal aid contracts to the extent such conflict exists, but all provisions of this chapter with which there is no such conflict, shall apply to federal aid contracts.

§ 32-1164 Violation; classification; probation; conditions

A. Commission by a contractor of any of the following acts is a class 1 misdemeanor:

1. Any act specified in section 32-1154, subsection A, paragraph 6 or 9.

2. Acting in the capacity of a contractor within the meaning of this chapter without a license.

B. For the first offense under subsection A of this section, a contractor shall be fined not less than one thousand dollars. For the second or any subsequent offense under subsection A of this section, a contractor shall be fined not less than two thousand dollars.

C. If a person is convicted of a misdemeanor pursuant to subsection A of this section and the court sentences the person to a term of probation, the court shall order that as conditions of probation the person do all of the following:

1. Pay in full all transaction privilege tax or use tax amounts that are due under title 42, chapter 5, article 2 or 4 and that arise from the acts or omissions constituting the offense.

2. Pay in full all transaction privilege or use tax amounts that are due to the county in which the offense occurred and that arise from the acts or omissions constituting the offense.

3. Pay in full all transaction privilege or use tax amounts that are owed to the local municipal government, city or town in which the offense occurred and that arise from the acts or omissions constituting the offense.

§ 32-1165 Advertising; violation; classification

Except as authorized by section 32-1121, subsection A, it is a class 1 misdemeanor for any person to advertise that the person is able to perform any service or contract for compensation subject to regulation by the registrar under the terms of this chapter unless the person first obtains a license under the terms of this chapter.

§ 32-1166 Cease and desist orders

A. The registrar may issue a cease and desist order to any person who is required to be licensed by this chapter but who is not licensed and who engaged in an act of contracting, a practice or a transaction that violates this chapter, a rule adopted by the registrar or an order issued by the registrar.

B. The cease and desist order may require the person to immediately cease and desist from engaging in an act, practice or transaction on receipt of the order.

C. Service of the cease and desist order is fully effected by personal service or by mailing a true copy of the cease and desist order by certified mail in a sealed envelope, with postage prepaid, addressed to either:

1. The person's last known business address.

2. The person's residential address.

§ 32-1166.01 Citation; civil penalties

A. In conjunction with the registrar's authority to issue a cease and desist order under section 32-1166, subsection A, the registrar may issue a citation for contracting practicing or transacting that constitutes a violation of any of the following:

1. This chapter.

2. A rule adopted by the registrar.

3. An order issued by the registrar.

B. A citation issued pursuant to this section shall:

1. Be in writing.

2. Clearly describe the violation for which the citation was issued.

3. Contain an order to cease and desist.

4. Contain a civil penalty of at least $200 for each violation but not more than $2,500 for multiple violations committed on the same day.

C. Each violation of this chapter or a rule or order of the registrar by a person who is required to be licensed by this chapter and who does not possess the required license constitutes a separate offense and the registrar may impose a civil penalty not to exceed $2,500 for each violation except that the civil penalty may not exceed $2,500 for all violations committed on the same day.

D. The registrar shall issue a citation under this section within one hundred and eighty days after actual discovery of the offense by this state or the political subdivision having jurisdiction. Service of the citation is fully effected by personal service or by mailing a true copy of the citation by certified mail in a sealed envelope with postage prepaid and addressed to either:

1. The person's last known business address.

2. The person's residential address.

E. The registrar may issue citations containing orders to cease and desist and civil penalties against persons who have never been licensed under this chapter who are acting in the capacity of or engaging in the business of a contractor in this state.

F. If the registrar issues a citation against a person and the person fails to comply with the cease and desist order and citation, the registrar may assess an additional civil penalty of up to $2,500 for each day the violation continues.

G. The registrar may adopt rules relating to the civil penalty that give due consideration to the gravity of the violation and any history of previous violations.

H. The penalties authorized under this section are separate from, and in addition to, all other remedies provided by law, either civil or criminal.

I. The registrar shall deposit, pursuant to sections 35-146 and 35-147, all monies collected from civil penalties under this section in the state general fund.

§ 32-1166.06 Filing registrar's orders

After the exhaustion of administrative review procedures pursuant to title 41, chapter 6, article 10, and if judicial review has not been sought under title 12, chapter 7, article 6, a certified copy of any registrar's order requiring the payment of civil penalties may be filed in the office of the clerk of the superior court in any county of this state. The clerk shall handle the registrar's order in the same manner as a superior court judgment. A registrar's order that is filed in the office of the clerk of the superior court has the same effect as a superior court judgment and may be recorded, enforced or satisfied in a similar manner. A person who files a registrar's order under this section is not required to pay a filing fee.

§ 32-1166.07 Waiver of civil penalty

Notwithstanding any other law, the registrar may waive all, except two hundred dollars, of the civil penalty if the person against whom the civil penalty is assessed completes all of the requirements for, and is issued, a contractor's license. Any loss or damage to the public caused by the violator's activities shall be remedied before issuance of the license.

§ 32-1168 Proof of valid license

At the request of the registrar, and after issuing a citation pursuant to section 32-1104, subsection A, paragraph 4, or a cease and desist order pursuant to section 32-1166, the county, city or authority of the state may cause work on a construction project to cease or be suspended on that project until there is compliance with the licensing requirements of section 32-1151 by those contractors employed on that project.

§ 32-1169 Building permits; local proof of valid license; violation

A. Each county, city or other political subdivision or authority of this state or any agency, department, board or commission of this state that requires the issuance of a building permit as a condition precedent to the construction, alteration, improvement, demolition or repair of a building, structure or other improvement to real property for which a license is required under this chapter, as part of the application procedures which it uses, shall require that each applicant for a building permit file a signed statement that the applicant is properly licensed to perform the work described in the permit under this chapter with the applicant's license number. If the applicant purports to be exempt from the licensing requirements of this chapter, the statement shall contain the basis of the asserted exemption and the name and license number of any general, mechanical, electrical or plumbing contractor who will be employed on the work. The local issuing authority may require from the applicant a statement signed by the registrar to verify any purported exemption.

B. The filing of an application containing false or incorrect information concerning an applicant's contractor's license with the intent to avoid the licensing requirements of this chapter is unsworn falsification pursuant to section 13-2704.

Article 4 Qualification of Solar Contractors

§ 32-1170 Definitions

In this article, unless the context otherwise requires:

1. "Solar contractor" means a contractor, as defined in section 32-1101, who installs, alters or repairs solar devices.

2. "Solar device" means a device for the use and application of solar energy incidental to:

(a) Boilers, steamfitting and process piping.

(b) Plumbing.

(c) Air conditioning or comfort heating and cooling systems.

(d) Hot water systems for residences and swimming pools.

(e) Solar daylighting by a device as defined in section 44-1761.

§ 32-1170.01 Installation, alteration or repair of solar device without qualification as solar contractor prohibited

After June 30, 1980, it is unlawful for a contractor to install, alter or repair a solar device without qualifying as a solar contractor pursuant to this article.

§ 32-1170.02 Qualification examination

A. To qualify as a solar contractor under this article, the applicant shall:

1. Submit to the registrar an application on forms prescribed by the registrar, identifying the applicant and the classification of license held or sought by the applicant, and pay the prescribed fee.

2. Pass an examination approved and conducted by the registrar that is specific to the solar requirements of the classification of license held or sought by the applicant.

3. Meet all other provisions of this chapter relating to obtaining and maintaining an appropriate license.

B. The examination shall be given by the registrar at the times and places prescribed by the registrar.

C. The license of a successful applicant shall be appropriately marked or supplemented by the registrar to indicate qualification as a solar contractor within the scope of that license.

Article 5 Prompt Pay

§ 32-1181 Definitions; applicability

A. In this article, unless the context otherwise requires:

1. "Construction contract" means a written or oral agreement relating to the construction, alteration, repair, maintenance, moving or demolition of any building, structure or improvement or relating to the excavation of or other development or improvement to land.

2. "Contractor" means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that has a direct contract with an owner to perform work under a construction contract.

3. "Final completion" means the earliest of the following:

(a) When the work, or the work under a portion of a construction contract for which the contract states a separate price, has been completed in accordance with the terms and conditions of the construction contract.

(b) The date of final inspection and final written acceptance by the governmental body that issues the building permit for the building, structure or improvement.

4. "Owner" means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that causes a building, structure or improvement to be constructed, altered, repaired, maintained, moved or demolished or that causes land to be excavated or otherwise developed or improved, whether the interest or estate of the person is in fee, as vendee under a contract to purchase, as lessee or another interest or estate less than fee.

5. "Retention" means a portion of a progress payment otherwise due from the owner to the contractor that is withheld pursuant to the terms and conditions of a construction contract to ensure proper performance of the construction contract.

6. "Subcontractor" means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that has a direct contract with a contractor or another subcontractor to perform a portion of the work under a construction contract.

7. "Substantial completion" or "substantially complete" means the earliest of the following events:

(a) The stage in the progress of the work on a construction contract when the work, or the work under a portion of a construction contract for which the contract states a separate price, is sufficiently complete in accordance with the terms and conditions of the construction contract so that the owner can occupy and use the work or such portion of the work for its intended purpose. When substantial completion occurs for a portion of a construction contract for which the contract states a separate price, substantial completion occurs only to the work under that portion of the contract.

(b) The stage in the progress of the work on a construction contract when the contractor has sufficiently completed the work or the work under a portion of a construction contract for which the contract states a separate price in accordance with the terms and conditions of the construction contract to allow the owner to occupy and use the work or such portion of the work for its intended purpose but the owner is unable to or does not occupy or use the work or such portion of the work for its intended purpose through no fault of the contractor.

(c) The date on which the governmental body that issues the building permit, if any, for a building, structure or improvement issues the written acceptance allowing the owner to occupy and use the work under a construction contract.

8. "Work" means the labor, materials, equipment and services to be provided by a contractor or subcontractor under a construction contract.

B. The definitions in this section do not apply to section 12-552.

§ 32-1182 Progress payments by owner; conditions; interest

A. By mutual agreement with a contractor, an owner may make progress payments on construction contracts of less than sixty days. An owner shall make progress payments to a contractor on all other construction contracts. Progress payments shall be made on the basis of a duly certified and approved billing or estimate of the work performed and the materials supplied. The billing or estimate for a progress payment shall be submitted on a thirty day billing cycle unless the construction contract and each page of the plans, including bid plans and construction plans, shall specifically identify a different billing cycle in a clear and conspicuous manner as prescribed in subsection B of this section. If any work is performed during a billing cycle, a contractor shall timely submit a billing or estimate to the owner. Except as provided in subsection C of this section, the owner shall make progress payments to the contractor within seven days after the date the billing or estimate is certified and approved pursuant to subsection D of this section. Except as provided in subsection C of this section, an owner shall release retention to the contractor within seven days after the date the billing or estimate for release of retention is certified and approved pursuant to subsection H of this section. Except as provided in subsection C of this section, an owner shall make final payment to the contractor within seven days after the billing or estimate for final payment is certified and approved pursuant to subsection K of this section.

B. A construction contract may provide for a billing cycle other than a thirty day billing cycle if the construction contract specifically sets forth such other billing cycle and either of the following applies:

1. The following legend or substantially similar language setting forth the other billing cycle appears in clear and conspicuous type on each page of the plans, including bid plans and construction plans:

Notice of Alternate Billing Cycle

This contract allows the owner to require the submission of billings or estimates in billing cycles other than thirty days. Billings or estimates for this contract shall be submitted as follows:

---

---

---

2. The following legend or substantially similar language setting forth the other billing cycle appears in clear and conspicuous type on each page of the plans, including bid plans and construction plans:

Notice of Alternate Billing Cycle

This contract allows the owner to require the submission of billings or estimates in billing cycles other than thirty days. A written description of such other billing cycle applicable to the project is available from the owner or the owner's designated agent at (telephone number or address, or both), and the owner or its designated agent shall provide this written description on request.

C. An owner may make progress payments, release of retention and final payment later than seven days after the date the billing or estimate is certified and approved if both:

1. The construction contract in a clear and conspicuous manner specifically provides for a later payment defined by a specified number of days after certification and approval.

2. The following legend or substantially similar language setting forth the specified number of days appears in clear and conspicuous type on each page of the plans, including bid plans and construction plans:

Notice of Extended Payment Provision

This contract allows the owner to make payment within _____ days after certification and approval of billings and estimates for progress payments, within _______ days after certification and approval of billings and estimates for release of retention and within ____ days after certification and approval of billings and estimates for final payment.

D. Except as provided in subsection F of this section, a billing or estimate for a progress payment shall be deemed certified and approved fourteen days after the owner receives the billing or estimate, unless before that time the owner or the owner's agent prepares and issues a written statement stating in reasonable detail the owner's reasons for not certifying or approving all or a portion of the billing or estimate. The owner is deemed to have received the billing or estimate when the billing or estimate is submitted to any person designated by the owner for receipt or for certification and approval of the billing or estimate. The owner may withhold from a progress payment a reasonable amount for retention. An owner may decline to certify and approve a billing or estimate or portion of a billing or estimate for any of the following reasons:

1. Unsatisfactory job progress.

2. Defective construction work or materials not remedied.

3. Disputed work or materials.

4. Failure to comply with other material provisions of the construction contract.

5. Third-party claims filed or reasonable evidence that a claim will be filed.

6. Failure of the contractor or a subcontractor to make timely payments for labor, equipment and materials.

7. Damage to the owner.

8. Reasonable evidence that the construction contract cannot be completed for the unpaid balance of the construction contract sum.

E. An owner may withhold from a progress payment only an amount that is sufficient to pay the direct costs and expenses the owner reasonably expects to incur to protect the owner from loss for which the contractor is responsible and that results from any reasons set forth in writing pursuant to subsection D of this section.

F. An owner may extend the period within which the billing or estimate for progress payments, release of retention and final payment is certified and approved if both:

1. The construction contract in a clear and conspicuous manner specifically provides for an extended time period within which a billing or estimate shall be certified and approved defined by a specified number of days after the owner has received the billing or estimate.

2. The following legend or substantially similar language, setting forth the specified number of days, appears in clear and conspicuous type on each page of the plans, including bid plans and construction plans:

Notice of Extended Certification and

Approval Period Provision

This contract allows the owner to certify and approve billings and estimates for progress payments within ____ days after the billings and estimates are received from the contractor, for release of retention within ____ days after the billings and estimates are received from the contractor and for final payment within ____ days after the billings and estimates are received from the contractor.

G. After the effective date of a construction contract, an owner and contractor may change the number of specified days after certification and approval for the owner to make payment to the contractor or within which a billing or estimate must be certified and approved. Any contractor or subcontractor that does not provide written consent to the change will continue to be paid as previously agreed.

H. On substantial completion of the work, a contractor shall submit a billing or estimate for release of retention. Except as provided in subsection F of this section, the billing or estimate for release of retention shall be deemed certified and approved within fourteen days after the owner receives the billing or estimate, unless before that time the owner or the owner's agent issues a written statement stating in reasonable detail the owner's reasons for not certifying or approving all or a portion of the billing or estimate. The owner is deemed to have received the billing or estimate when the billing or estimate is submitted to any person designated by the owner for receipt or for certification and approval of the billing or estimate. The owner may:

1. Decline to certify and approve a billing or estimate for release of retention or a portion of a billing or estimate for release of retention for failure of the contractor to complete a material requirement of the construction contract or to complete portions of the work or for any reason permitted under subsection D of this section.

2. Withhold from retention to be released only an amount not to exceed one hundred fifty percent of the direct costs and expenses the owner reasonably expects to incur to protect the owner from loss for which the contractor is responsible and that results from the contractor's failure to complete portions of the work at the time of substantial completion or for any reasons set forth in writing pursuant to this subsection.

I. Except as provided in subsections C and H of this section, the owner shall pay the retention to the contractor within seven days after the date the billing or estimate for release of retention is certified and approved. If the owner has declined to certify or approve a billing or estimate for release of retention or a portion of a billing or estimate for release of retention pursuant to subsection H of this section, when any reason as stated in the owner's written statement has been removed, the contractor may submit a supplemental billing or estimate for all or a portion of the withheld amounts of retention pursuant to subsection H of this section. Unless otherwise agreed, the contractor may submit only one billing or estimate during each billing cycle.

J. When a contractor substantially completes all work under a portion of a construction contract for which the contract states a separate price, the contractor shall submit a billing or estimate for release of retention on that portion of the construction contract pursuant to subsection H of this section.

K. On final completion of the work, a contractor shall submit a billing or estimate for final payment. Except as provided in subsection F of this section, a billing or estimate for final payment shall be deemed certified and approved fourteen days after the owner receives the billing or estimate, unless before that time the owner or owner's agent prepares and issues a written statement stating in reasonable detail the reasons the billing or estimate has not been certified or approved. The owner is deemed to have received the billing or estimate for final payment when the billing or estimate is submitted to any person designated by the owner for receipt of or for certification and approval of the billing or estimate. The owner may:

1. Decline to certify and approve a billing or estimate for final payment or a portion of a billing or estimate for final payment for failure of the contractor to complete a requirement of the construction contract or to complete portions of the work or for any reason permitted under subsection D of this section.

2. Withhold from final payment only an amount not to exceed one hundred fifty percent of the direct costs and expenses the owner reasonably expects to incur to protect the owner from loss for which the contractor is responsible and that results from any reasons set forth in writing pursuant to this subsection.

L. Except as provided in subsection C of this section, the owner shall make final payment to the contractor within seven days after the date the billing or estimate for final payment is certified and approved. If the owner has declined to certify or approve a billing or estimate for final payment or a portion of a billing or estimate for final payment pursuant to subsection K of this section, when any reason as stated in the owner's written statement has been removed, the contractor may submit a billing or estimate for all or a portion of the withheld amounts of final payment pursuant to subsection K of this section. Unless otherwise agreed, the contractor may submit only one billing or estimate during each billing cycle.

M. Except as provided in subsection C of this section, on projects that require a federal agency's final certification or approval, the owner shall make payment in full on the construction contract within seven days after the federal agency's final certification or approval.

N. When a contractor completes all work under a portion of a construction contract for which the contract states a separate price, the contractor may timely submit a billing or estimate for final payment on that portion of the construction contract pursuant to subsection K of this section.

O. Payment shall not be required pursuant to this section unless the contractor provides the owner with a billing or estimate in accordance with the terms of the construction contract between the parties.

P. A construction contract shall not alter the rights of any contractor, subcontractor or material supplier to receive prompt and timely payments as provided under this article.

Q. If an owner or a third party designated by an owner as the person responsible for making progress payments, releasing retention or making final payment on a construction contract does not make a timely payment on amounts due pursuant to this section, the owner shall pay the contractor interest at the rate of one and one-half percent a month or fraction of a month on the unpaid balance, or at a higher rate as the parties to the construction contract agree.

R. On the written request of a subcontractor, the owner shall notify the subcontractor within five days after the issuance of a progress payment to the contractor. On the written request of a subcontractor, the owner shall notify the subcontractor within five days after the owner releases retention or makes the final payment to the contractor on the construction contract. A subcontractor's request pursuant to this subsection shall remain in effect for the duration of the subcontractor's work on the project.

S. In any action or arbitration brought to collect payments or interest pursuant to this section, the successful party shall be awarded costs and attorney fees in a reasonable amount.

T. If the owner and contractor are a single entity, that entity shall pay its subcontractors or material suppliers within fourteen days after the billing or estimate is certified and approved unless the deadlines for certification and approval or for payment have been modified pursuant to subsection C or F of this section.

U. Notwithstanding anything to the contrary in this section, an owner may define "retention", "substantial completion" and "final completion" to have meanings different than those stated in section 32-1181, if:

1. The construction contract in a clear and conspicuous manner defines the terms.

2. The legend set forth in subsection W of this section or substantially similar language appears in clear and conspicuous type on each page of the plans, including bid plans and construction plans.

3. The different meanings of "retention", "substantial completion" and "final completion" are set forth in the plans, including on bid plans and construction plans, and the legend required by paragraph 2 of this subsection designates the sheet number of the plans on which the different meanings of the terms can be found.

V. Notwithstanding anything to the contrary in this section, an owner may establish different timing and conditions for when the contractor may submit a billing or estimate for release of retention or for final payment and for when such payments shall be due, if:

1. The construction contract in a clear and conspicuous manner establishes different timing for when the contractor may submit a billing or estimate for release of retention or for final payment, or both, and for when such payments shall be due.

2. The legend set forth in subsection W of this section or substantially similar language appears in clear and conspicuous type on each page of the plans, including bid plans and construction plans.

3. The different timing and conditions for when the contractor may submit a billing or estimate for release of retention or for final payment and for when such payments shall be due are set forth in the plans, including on bid plans and construction plans, and the legend required by paragraph 2 of this subsection designates the sheet number of the plans on which the different timing and conditions can be found.

W. The legend for making one or more of the modifications set forth in subsections U and V of this section shall be as follows:

Notice of Alternate Arrangements for

Release of Retention and Final Payment

This contract allows the owner to make alternate arrangements for the occurrence of substantial completion, the release of retention and making of final payment. Such alternate arrangements are disclosed on sheet no. _____ of these plans.

§ 32-1183 Performance and payment by contractor, subcontractor or material supplier; conditions; interest

A. Notwithstanding the other provisions of this article, performance by a contractor, subcontractor or material supplier in accordance with the provisions of a construction contract entitles the contractor, subcontractor or material supplier to payment from the party with whom the contractor, subcontractor or material supplier contracts.

B. If a subcontractor or material supplier has performed in accordance with the provisions of a construction contract, the contractor shall pay to its subcontractors or material suppliers and each subcontractor shall pay to its subcontractors or material suppliers, within seven days of receipt by the contractor or subcontractor of each progress payment, retention release or final payment, the full amount received for such subcontractor's work and materials supplied based on work completed or materials supplied under the subcontract. Payment shall not be required pursuant to this subsection unless the subcontractor or material supplier provides to the contractor or subcontractor a billing or invoice for the work performed or material supplied in accordance with the terms of the construction contract between the parties. Each subcontractor or material supplier shall provide a waiver of any mechanic's or materialman's lien conditioned on payment for the work completed or material supplied. The contractor or subcontractor may require that such conditional waivers of lien be notarized. Any diversion by the contractor or subcontractor of payments received for work performed pursuant to a contract, or failure to reasonably account for the application or use of such payments, constitutes grounds for disciplinary action by the registrar of contractors. Violations of this section shall be grounds for suspension or revocation of a license or other disciplinary action by the registrar pursuant to section 32-1154, subsections B, C and D. The subcontractor or material supplier may notify the registrar of contractors and the owner in writing of any payment less than the amount or percentage approved for the class or item of work as set forth in this section.

C. Nothing in this section prevents the contractor or subcontractor, at the time of application or certification to the owner or contractor, from withholding such application or certification to the owner or contractor for payment to the subcontractor or material supplier for any of the following reasons:

1. Unsatisfactory job progress.

2. Defective construction work or materials not remedied.

3. Disputed work or materials.

4. Failure to comply with other material provisions of the construction contract.

5. Third-party claims filed or reasonable evidence that a claim will be filed.

6. Failure of the subcontractor to make timely payments for labor, equipment and materials.

7. Damage to a contractor or another subcontractor or material supplier.

8. Reasonable evidence that the subcontract cannot be completed for the unpaid balance of the subcontract sum.

9. The owner has withheld retention from the contractor, in which case the amount of the retention withholding by the contractor shall not exceed the actual amount of the retention retained by the owner pertaining to the subcontractor's work.

D. A contractor or subcontractor shall not withhold retention from a subcontractor in an amount greater than the actual amount of the retention retained by the owner pertaining to the work of the subcontractor.

E. If the contractor or subcontractor chooses to withhold the application or certification for all or a portion of a subcontractor's or material supplier's billing or estimates as permitted by subsection C of this section, the contractor or subcontractor must prepare and issue a written statement within fourteen days to the applicable subcontractors or material suppliers stating in reasonable detail the contractor's or subcontractor's reasons for withholding the application or certification from the owner or contractor.

F. If the owner issues a written statement pursuant to section 32-1182, subsection D, H or K stating that the owner declines to certify or approve all or a portion of the contractor's billing or estimate and if the amounts to be paid from that billing or estimate by the contractor to any subcontractors or material suppliers are affected by the owner's decision not to certify or approve, the contractor shall send a copy of that written statement within seven days after receipt to any affected subcontractors or material suppliers. If the contractor sends a copy of the owner's written statement to a subcontractor and if the amounts to be paid from that billing or estimate by a subcontractor to any of its subcontractors or material suppliers are affected by the owner's decision not to certify or approve, then the subcontractor shall send a copy of that written statement within seven days after receipt to any of its affected subcontractors or material suppliers.

G. If the owner issues a written statement pursuant to section 32-1182, subsection D, H or K stating that the owner declines to certify or approve a billing or estimate or a portion of a billing or estimate for defective construction work or materials not remedied and if the contractor as a result does not receive sufficient payment from the owner to pay subcontractors and material suppliers for work included in the contractor's billing or estimate, the contractor shall nevertheless pay any subcontractor or material supplier whose work was not the basis of the owner's withholding for defective construction work or materials not remedied within twenty-one days after payment would otherwise have been made by the owner under section 32-1182, subsection A. This subsection does not limit a subcontractor's rights to suspend performance under a construction contract or terminate a construction contract under section 32-1185, subsection D.

H. If a progress or final payment or release of retention to a subcontractor or material supplier is delayed by more than seven days after receipt of progress or final payment or release of retention by the contractor or subcontractor pursuant to this section, the contractor or subcontractor shall pay its subcontractor or material supplier interest, except for periods of time during which payment is withheld pursuant to subsection C of this section, beginning on the eighth day, at the rate of one and one-half percent per month or a fraction of a month on the unpaid balance or at such higher rate as the parties agree.

I. Any licensed contractor, licensed subcontractor or material supplier who files a complaint with the registrar of contractors under this section shall be required to post a surety bond or cash deposit of $500 or one-half of the amount due, whichever is less, with the registrar to secure the payment of claims under this section. If the complaint is determined by the registrar to be without merit and frivolous, the registrar shall order the person who filed the complaint to pay one-half of the amount of the required surety bond or cash deposit to the respondent and one-half to the registrar for deposit into the state general fund. If no claim may be made under this section against the surety bond or cash deposit, the surety bond or cash deposit shall be returned to the complainant. The surety bond or cash deposit shall be in the name of the licensee or material supplier who files the complaint and shall be subject to claims by the registrar of contractors and the respondent licensee as provided in this section. The surety bond or cash deposit shall be conditioned on and provide for payment on the presentation of a certified copy of the order of the registrar and a certification by the complainant of nonpayment within thirty days after the order becomes final. The surety bond shall be executed by the complainant as principal with a corporation duly authorized to transact surety business in this state. Evidence of the surety bond shall be submitted to the registrar in a form acceptable to the registrar. The cash deposit shall be deposited, pursuant to sections 35-146 and 35-147, by the registrar in the contractors prompt pay complaint fund and shall be held for the payment of claims.

J. In any action or arbitration brought to collect payments or interest pursuant to this section, the successful party shall be awarded costs and attorney fees in a reasonable amount.

§ 32-1184 Interruption of performance of construction contract; damages; termination of contract

A. A contractor licensed under this chapter may interrupt the performance of a construction contract without penalty or liability for breach of contract if any applicable law or rule requires the cessation of work or the contractor encounters any hazardous substance or hazardous material which is required to be removed or contained by any applicable law or rule and either of the following apply:

1. Any applicable law or rule prohibits the contractor from proceeding to remove or contain the hazardous material or hazardous substance unless the contractor is duly licensed and the contractor is not so licensed.

2. The removal or containment of the hazardous material or hazardous substance cannot be accomplished without a cessation of work.

B. A contractor licensed under this chapter whose work is impaired, impeded or prohibited under subsection A may interrupt performance of the construction contract as provided in this section only to the extent of the area affected by the hazardous materials or hazardous substances removed or contained by the owner or as otherwise required by applicable statute or rule.

C. A person who interrupts the performance of a construction contract under subsection A is entitled to reasonable and foreseeable damages caused by the delay unless the existence of the specific hazardous substance or hazardous material is disclosed in writing prior to entering into the contract. The right to damages is conditioned upon notification within a reasonable period of time to the owner of the discovery by the person of the existence of the hazardous material or hazardous substance. This section shall not affect any legal rights and remedies otherwise existing between the parties, including but not limited to rights to damages, setoff and counterclaim.

D. The owner may terminate the construction contract on payment to the contractor, subcontractor or other person whose work is delayed under subsection A of the amount of any services or materials supplied or expended which conform to the contract terms and specifications and the payment of damages subject to the provisions of subsection C to the date of the termination of the contract.

§ 32-1185 Construction contracts; suspension of performance; termination

A. A contractor may suspend performance under a construction contract or terminate a construction contract for failure by the owner to make timely payment of the amount certified and approved pursuant to section 32-1182. A contractor shall provide written notice to the owner at least seven calendar days before the contractor's intended suspension or termination unless a shorter notice period is prescribed in the construction contract between the owner and contractor. A contractor shall not be deemed in breach of the construction contract for suspending performance or terminating a construction contract pursuant to this subsection. A construction contract shall not extend the time period for a contractor to suspend performance or terminate a construction contract under this subsection.

B. A subcontractor may suspend performance under a construction contract or terminate a construction contract if the owner fails to make timely payment of amounts certified and approved pursuant to section 32-1182 for the subcontractor's work and the contractor fails to pay the subcontractor for the certified and approved work. A subcontractor shall provide written notice to the contractor and owner at least three calendar days before the subcontractor's intended suspension or termination unless a shorter notice period is prescribed in the construction contract between the contractor and subcontractor. A subcontractor shall not be deemed in breach of a construction contract for suspending performance or terminating a construction contract pursuant to this subsection. A construction contract shall not extend the time period for a subcontractor to suspend performance or terminate a construction contract under this subsection.

C. A subcontractor may suspend performance under a construction contract or terminate a construction contract if the owner makes timely payment of amounts certified and approved pursuant to section 32-1182 for the subcontractor's work but the contractor fails to pay the subcontractor for the certified and approved work. A subcontractor shall provide written notice to the contractor and owner at least seven calendar days before the subcontractor's intended suspension or termination unless a shorter notice period is prescribed in the construction contract between the contractor and subcontractor. A subcontractor shall not be deemed in breach of a construction contract for suspending performance or terminating a construction contract pursuant to this subsection. A construction contract shall not extend the time period for a subcontractor to suspend performance or terminate a construction contract under this subsection.

D. A subcontractor may suspend performance under a construction contract or terminate a construction contract if the owner declines to approve and certify portions of the contractor's billing or estimate pursuant to section 32-1182 for that subcontractor's work but the reasons for that failure by the owner to approve and certify are not the fault of or directly related to the subcontractor's work. A subcontractor shall provide written notice to the contractor and the owner at least seven calendar days before the subcontractor's intended suspension or termination unless a shorter notice period is prescribed in the construction contract between the contractor and subcontractor. A subcontractor shall not be deemed in breach of a construction contract for suspending performance or terminating a construction contract pursuant to this subsection. A construction contract shall not extend the time period for a subcontractor to suspend performance or terminate a construction contract under this subsection.

E. A contractor or subcontractor that suspends performance as provided in this section is not required to furnish further labor, materials or services until the contractor or subcontractor is paid the amount that was certified and approved, together with any costs incurred for mobilization resulting from the shutdown or start-up of a project.

F. In any action or arbitration brought pursuant to this section, the successful party shall be awarded costs and attorney fees in a reasonable amount.

G. Written notice required under this section shall be deemed to have been provided if either of the following occurs:

1. The written notice is delivered in person to the individual or a member of the entity or to an officer of the corporation for which it was intended.

2. The written notice is delivered at or sent by any means that provides written, third-party verification of delivery to the last business address known to the party giving notice.

§ 32-1186 Construction contracts; void provisions

A. The following are against this state's public policy and are void and unenforceable:

1. A provision, covenant, clause or understanding in, collateral to or affecting a construction contract that makes the contract subject to the laws of another state or that requires any litigation arising from the contract to be conducted in another state.

2. A provision, covenant, clause or understanding in, collateral to or affecting a construction contract stating that a party to the contract cannot suspend performance under the contract or terminate the contract if another party to the contract fails to make prompt payments under the contract pursuant to section 32-1181, 32-1182 or 32-1183.

B. Any mediation, arbitration or other dispute resolution proceeding arising from a construction contract for work performed in this state shall be conducted in this state.

§ 32-1187 Applicability to state and political subdivisions

Sections 32-1182, 32-1183, 32-1185 and 32-1186 do not apply to this state or political subdivisions of this state.

§ 32-1188 Applicability to construction of a dwelling for an owner-occupant; definitions

A. The requirements in section 32-1182 do not apply to construction contracts for the construction of a dwelling for an owner-occupant unless the following legend or substantially similar language appears in clear and conspicuous type on the front page of each billing or estimate from the contractor to the owner-occupant:

Notice to owner of applicability of Arizona prompt pay act

(Notice required by Arizona Revised Statutes

section 32-1188)

Attention: Your obligations to pay your contractor are subject to the Arizona prompt pay act. That act is set forth in title 32, chapter 10, article 5, Arizona Revised Statutes. The full text of the statutes are available at your local public law library or on the internet. Under that act, you have the right to withhold all or a portion of a payment to a contractor for a variety of reasons, including defective construction work that has not been corrected. However, in order to do so, you must issue a written statement setting forth in reasonable detail your reasons for withholding payments within fourteen (14) days after the date you receive a billing or estimate. If you fail to issue the written statement within that period, the billing or estimate will be deemed approved. Once the billing or estimate is deemed approved, you must pay the billing or estimate within seven (7) days. Generally, you are limited by the act to withholding only an amount that is sufficient to pay the direct costs and expenses you reasonably expect to incur to protect you from loss for which the contractor is responsible. You are encouraged to read the act in full to know your obligations and rights.

B. For the purposes of this section, "dwelling" and "owner-occupant" have the same meanings prescribed in section 33-1002.

Chapter 11 Dentistry

Article 1 Dental Board

§ 32-1201 Definitions

In this chapter, unless the context otherwise requires:

1. "Affiliated practice dental hygienist" means any licensed dental hygienist who is able, pursuant to section 32-1289.01, to initiate treatment based on the dental hygienist's assessment of a patient's needs according to the terms of a written affiliated practice agreement with a dentist, to treat the patient without the presence of a dentist and to maintain a provider-patient relationship.

2. "Auxiliary personnel" means all dental assistants, dental technicians, dental x-ray technicians and other persons employed by dentists or firms and businesses providing dental services to dentists.

3. "Board" means the state board of dental examiners.

4. "Business entity" means a business organization that has an ownership that includes any persons who are not licensed or certified to provide dental services in this state, that offers to the public professional services regulated by the board and that is established pursuant to the laws of any state or foreign country.

5. "Dental assistant" means any person who acts as an assistant to a dentist, dental therapist or dental hygienist by rendering personal services to a patient that involve close proximity to the patient while the patient is under treatment or observation or undergoing diagnostic procedures.

6. "Dental hygienist" means any person who is licensed and engaged in the general practice of dental hygiene and all related and associated duties, including educational, clinical and therapeutic dental hygiene procedures.

7. "Dental incompetence" means lacking in sufficient dentistry knowledge or skills, or both, in that field of dentistry in which the dentist, dental therapist, denturist or dental hygienist concerned engages, to a degree likely to endanger the health of that person's patients.

8. "Dental laboratory technician" means any person, other than a licensed dentist, who, pursuant to a written work order of a dentist, fabricates artificial teeth, prosthetic appliances or other mechanical and artificial contrivances designed to correct or alleviate injuries or defects, both developmental and acquired, disorders or deficiencies of the human oral cavity, teeth, investing tissues, maxilla or mandible or adjacent associated structures.

9. "Dental therapist" means any person who is licensed and engaged in the general practice of dental therapy and all related and associated duties, including educational, clinical and therapeutic dental therapy procedures.

10. "Dental x-ray laboratory technician" means any person, other than a licensed dentist, who, pursuant to a written work order of a dentist, performs dental and maxillofacial radiography, including cephalometrics, panoramic and maxillofacial tomography and other dental related nonfluoroscopic diagnostic imaging modalities.

11. "Dentistry", "dentist" and "dental" mean the general practice of dentistry and all specialties or restricted practices of dentistry.

12. "Denturist" means a person practicing denture technology pursuant to article 5 of this chapter.

13. "Disciplinary action" means regulatory sanctions that are imposed by the board in combination with, or as an alternative to, revocation or suspension of a license and that may include:

(a) Imposition of an administrative penalty in an amount not to exceed $2,000 for each violation of this chapter or rules adopted under this chapter.

(b) Imposition of restrictions on the scope of practice.

(c) Imposition of peer review and professional education requirements.

(d) Imposition of censure or probation requirements best adapted to protect the public welfare, which may include a requirement for restitution to the patient resulting from violations of this chapter or rules adopted under this chapter.

14. "Irregularities in billing" means submitting any claim, bill or government assistance claim to any patient, responsible party or third-party payor for dental services rendered that is materially false with the intent to receive unearned income as evidenced by any of the following:

(a) Charges for services not rendered.

(b) Any treatment date that does not accurately reflect the date when the service and procedures were actually completed.

(c) Any description of a dental service or procedure that does not accurately reflect the actual work completed.

(d) Any charge for a service or procedure that cannot be clinically justified or determined to be necessary.

(e) Any statement that is material to the claim and that the licensee knows is false or misleading.

(f) An abrogation of the copayment provisions of a dental insurance contract by a waiver of all or a part of the copayment from the patient if this results in an excessive or fraudulent charge to a third party or if the waiver is used as an enticement to receive dental services from that provider. This subdivision does not interfere with a contractual relationship between a third-party payor and a licensee or business entity registered with the board.

(g) Any other practice in billing that results in excessive or fraudulent charges to the patient.

15. "Letter of concern" means an advisory letter to notify a licensee or a registered business entity that, while the evidence does not warrant disciplinary action, the board believes that the licensee or registered business entity should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in board action against the practitioner's license or the business entity's registration. A letter of concern is not a disciplinary action. A letter of concern is a public document and may be used in a future disciplinary action.

16. "Licensed" means licensed pursuant to this chapter.

17. "Place of practice" means each physical location at which a person who is licensed pursuant to this chapter performs services subject to this chapter.

18. "Primary mailing address" means the address on file with the board and to which official board correspondence, notices or documents are delivered in a manner determined by the board.

19. "Qualified anesthesia provider" means any of the following:

(a) A licensee who holds a permit to administer anesthesia and sedation from the board pursuant to section 32-1207.

(b) A physician who has completed residency training in anesthesiology, who is licensed pursuant to chapter 13 or 17 of this title and who is registered with the Arizona medical board or the Arizona board of osteopathic examiners in medicine and surgery to administer anesthesia in dental offices and dental clinics pursuant to section 32-1403 or 32-1803.

(c) A certified registered nurse anesthetist who has a national board certification in anesthesiology, who is licensed pursuant to chapter 15 of this title and who is registered with the Arizona state board of nursing to administer anesthesia in dental offices and dental clinics pursuant to section 32-1606.

20. "Recognized continuing dental education" means continuing dental education as prescribed by the board in rule.

21. "Recognized dental hygiene school" means a school that has a dental hygiene program with a minimum two academic year curriculum, or the equivalent of four semesters, and that is approved by the board and accredited by the American dental association commission on dental accreditation.

22. "Recognized dental school" means a dental school that is accredited by the American dental association commission on dental accreditation.

23. "Recognized dental therapy school" means a school that is accredited or that has received initial accreditation by the American dental association commission on dental accreditation.

24. "Recognized denturist school" means a denturist school that maintains standards of entrance, study and graduation and that is accredited by the United States department of education or the council on higher education accreditation.

25. "Supervised personnel" means all dental hygienists, dental assistants, dental laboratory technicians, dental therapists, denturists, dental x-ray laboratory technicians and other persons supervised by licensed dentists.

26. "Teledentistry" means the use of data transmitted through interactive audio, video or data communications for the purposes of examination, diagnosis, treatment planning, consultation and directing the delivery of treatment by dentists and dental providers in settings permissible under this chapter or specified in rules adopted by the board.

§ 32-1201.01 Definition of unprofessional conduct

For the purposes of this chapter, "unprofessional conduct" means the following acts, whether occurring in this state or elsewhere:

1. Intentionally betraying a professional confidence or intentionally violating a privileged communication except as either of these may otherwise be required by law. This paragraph does not prevent members of the board from the full and free exchange of information with the licensing and disciplinary boards of other states, territories or districts of the United States or foreign countries, with the Arizona state dental association or any of its component societies or with the dental societies of other states, counties, districts, territories or foreign countries.

2. Using controlled substances as defined in section 36-2501, narcotic drugs, dangerous drugs or marijuana as defined in section 13-3401, or hypnotic drugs, including acetylurea derivatives, barbituric acid derivatives, chloral, paraldehyde, phenylhydantoin derivatives, sulfonmethane derivatives or any compounds, mixtures or preparations that may be used for producing hypnotic effects, or alcohol to the extent that it affects the ability of the dentist, dental therapist, denturist or dental hygienist to practice that person's profession.

3. Prescribing, dispensing or using drugs for other than accepted dental therapeutic purposes or for other than medically indicated supportive therapy in conjunction with managing a patient's needs and in conjunction with the scope of practice prescribed in section 32-1202.

4. Committing gross malpractice or repeated acts constituting malpractice.

5. Acting or assuming to act as a member of the board if this is not true.

6. Procuring or attempting to procure a certificate of the national board of dental examiners or a license to practice dentistry or dental hygiene by fraud or misrepresentation or by knowingly taking advantage of the mistake of another.

7. Having professional connection with or lending one's name to an illegal practitioner of dentistry or any of the other healing arts.

8. Representing that a manifestly not correctable condition, disease, injury, ailment or infirmity can be permanently corrected, or that a correctable condition, disease, injury, ailment or infirmity can be corrected within a stated time, if this is not true.

9. Offering, undertaking or agreeing to correct, cure or treat a condition, disease, injury, ailment or infirmity by a secret means, method, device or instrumentality.

10. Refusing to divulge to the board, on reasonable notice and demand, the means, method, device or instrumentality used in treating a condition, disease, injury, ailment or infirmity.

11. Dividing a professional fee or offering, providing or receiving any consideration for patient referrals among or between dental care providers or dental care institutions or entities. This paragraph does not prohibit the division of fees among licensees who are engaged in a bona fide employment, partnership, corporate or contractual relationship for the delivery of professional services.

12. Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of dentistry.

13. Having a license refused, revoked or suspended or any other disciplinary action taken against a dentist by, or voluntarily surrendering a license in lieu of disciplinary action to, any other state, territory, district or country, unless the board finds that this action was not taken for reasons that relate to the person's ability to safely and skillfully practice dentistry or to any act of unprofessional conduct.

14. Committing any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.

15. Obtaining a fee by fraud or misrepresentation, or wilfully or intentionally filing a fraudulent claim with a third party for services rendered or to be rendered to a patient.

16. Committing repeated irregularities in billing.

17. Employing unlicensed persons to perform or aiding and abetting unlicensed persons in performing work that can be done legally only by licensed persons.

18. Practicing dentistry under a false or assumed name in this state, other than as allowed by section 32-1262.

19. Wilfully or intentionally causing or allowing supervised personnel or auxiliary personnel operating under the licensee's supervision to commit illegal acts or perform an act or operation other than that allowed under article 4 of this chapter and rules adopted by the board pursuant to section 32-1282.

20. Committing the following advertising practices:

(a) Publishing or circulating, directly or indirectly, any false, fraudulent or misleading statements concerning the skill, methods or practices of the licensee or of any other person.

(b) Advertising in any manner that tends to deceive or defraud the public.

21. Failing to dispense drugs and devices in compliance with article 6 of this chapter.

22. Failing to comply with a board order, including an order of censure or probation.

23. Failing to comply with a board subpoena in a timely manner.

24. Failing or refusing to maintain adequate patient records.

25. Failing to allow properly authorized board personnel, on demand, to inspect the place of practice and examine and have access to documents, books, reports and records maintained by the licensee or certificate holder that relate to the dental practice or dental-related activity.

26. Refusing to submit to a body fluid examination as required through a monitored treatment program or pursuant to a board investigation into a licensee's or certificate holder's alleged substance abuse.

27. Failing to inform a patient of the type of material the dentist will use in the patient's dental filling and the reason why the dentist is using that particular filling.

28. Failing to report in writing to the board any evidence that a dentist, dental therapist, denturist or dental hygienist is or may be:

(a) Professionally incompetent.

(b) Engaging in unprofessional conduct.

(c) Impaired by drugs or alcohol.

(d) Mentally or physically unable to safely engage in the activities of a dentist, dental therapist, denturist or dental hygienist pursuant to this chapter.

29. Filing a false report pursuant to paragraph 28 of this section.

30. Practicing dentistry, dental therapy, dental hygiene or denturism in a business entity that is not registered with the board as required by section 32-1213.

31. Dispensing a schedule II controlled substance that is an opioid.

32. Providing services or procedures as a dental therapist that exceed the scope of practice or exceed the services or procedures authorized in the written collaborative practice agreement.

§ 32-1202 Scope of practice; practice of dentistry

For the purposes of this chapter, the practice of dentistry is the diagnosis, surgical or nonsurgical treatment and performance of related adjunctive procedures for any disease, pain, deformity, deficiency, injury or physical condition of the human tooth or teeth, alveolar process, gums, lips, cheek, jaws, oral cavity and associated tissues of the oral maxillofacial facial complex, including removing stains, discolorations and concretions and administering botulinum toxin type A and dermal fillers to the oral maxillofacial complex for therapeutic or cosmetic purposes.

§ 32-1203 State board of dental examiners; qualifications of members; terms

A. The state board of dental examiners is established consisting of six licensed dentists, two licensed dental hygienists, two public members and one business entity member appointed by the governor for a term of four years, to begin and end on January 1.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. The business entity member and the public members may participate in all board proceedings and determinations, except in preparing, giving or grading examinations for licensure. Dental hygienist board members may participate in all board proceedings and determinations, except in preparing, giving and grading examinations that do not relate to dental hygiene procedures.

D. A board member shall not serve more than two consecutive terms.

E. For the purposes of this section, the business entity member must be an employee or owner of a registered business entity pursuant to section 32-1213 and may not include a person who is licensed pursuant to this chapter.

§ 32-1204 Removal from office

The governor may remove a member of the board for persistent neglect of duty, incompetency, unfair, biased, partial or dishonorable conduct, or gross immorality. Conviction of a felony or revocation of the dental license of a member of the board shall ipso facto terminate his membership.

§ 32-1205 Organization; meetings; quorum; staff

A. The board shall elect from its membership a president and a vice-president who shall act also as secretary-treasurer.

B. Board meetings shall be conducted pursuant to title 38, chapter 3, article 3.1. A majority of the board constitutes a quorum. Beginning September 1, 2015, meetings held pursuant to this subsection shall be audio recorded and the audio recording shall be posted to the board's website within five business days after the meeting.

C. The board may employ an executive director, subject to title 41, chapter 4, article 4 and legislative appropriation.

D. The board or the executive director may employ personnel, as necessary, subject to title 41, chapter 4, article 4 and legislative appropriation.

§ 32-1206 Compensation of board members; investigation committee members

A. Members of the board are entitled to receive compensation in the amount of $250 for each day actually spent in performing necessary work authorized by the board and all expenses necessarily and properly incurred while performing this work.

B. Members of an investigation committee established by the board may receive compensation in the amount of $100 for each committee meeting.

§ 32-1207 Powers and duties; executive director; immunity; fees; definitions

A. The board shall:

1. Adopt rules that are not inconsistent with this chapter for regulating its own conduct, for holding examinations and for regulating the practice of dentists and supervised personnel and registered business entities, provided that:

(a) Regulation of supervised personnel is based on the degree of education and training of the supervised personnel, the state of scientific technology available and the necessary degree of supervision of the supervised personnel by dentists.

(b) Except as provided pursuant to sections 32-1276.03 and 32-1281, only licensed dentists may perform diagnosis and treatment planning, prescribe medication and perform surgical procedures on hard and soft tissues.

(c) Only a licensed dentist, a dental therapist either under the direct supervision of a dentist or pursuant to a written collaborative practice agreement or a dental hygienist in consultation with a dentist may perform examinations, oral health assessments and treatment sequencing for dental hygiene procedures.

2. Adopt a seal.

3. Maintain a record that is available to the board at all times of its acts and proceedings, including the issuance, denial, renewal, suspension or revocation of licenses and the disposition of complaints. The existence of a pending complaint or investigation shall not be disclosed to the public. Records of complaints shall be available to the public, except only as follows:

(a) If the board dismisses or terminates a complaint, the record of the complaint shall not be available to the public.

(b) If the board has issued a nondisciplinary letter of concern, the record of the complaint shall be available to the public only for a period of five years after the date the board issued the letter of concern.

(c) If the board has required additional nondisciplinary continuing education pursuant to section 32-1263.01 but has not taken further action, the record of the complaint shall be available to the public only for a period of five years after the licensee satisfies this requirement.

(d) If the board has assessed a nondisciplinary civil penalty pursuant to section 32-1208 but has not taken further action, the record of the complaint shall be available to the public only for a period of five years after the licensee satisfies this requirement.

4. Establish a uniform and reasonable standard of minimum educational requirements consistent with the accreditation standards of the American dental association commission on dental accreditation to be observed by dental schools, dental therapy schools and dental hygiene schools in order to be classified as recognized dental schools, dental therapy schools or dental hygiene schools.

5. Establish a uniform and reasonable standard of minimum educational requirements that are consistent with the accreditation standards of the United States department of education or the council on higher education accreditation and that must be observed by denture technology schools in order to be classified as recognized denture technology schools.

6. Determine the reputability and classification of dental schools, dental therapy schools, dental hygiene schools and denture technology schools in accordance with their compliance with the standard set forth in paragraph 4 or 5 of this subsection, whichever is applicable.

7. Issue licenses to persons who the board determines are eligible for licensure pursuant to this chapter.

8. Determine the eligibility of applicants for restricted permits and issue restricted permits to those found eligible.

9. Pursuant to section 32-1263.02, investigate charges of misconduct on the part of licensees and persons to whom restricted permits have been issued.

10. Issue a letter of concern, which is not a disciplinary action but refers to practices that may lead to a violation and to disciplinary action.

11. Issue decrees of censure, fix periods and terms of probation, suspend or revoke licenses, certificates and restricted permits, as the facts may warrant, and reinstate licenses, certificates and restricted permits in proper cases.

12. Collect and disburse monies.

13. Perform all other duties that are necessary to enforce this chapter and that are not specifically or by necessary implication delegated to another person.

14. Establish criteria for the renewal of permits issued pursuant to board rules relating to general anesthesia and sedation.

B. The board may:

1. Sue and be sued.

2. Issue subpoenas, including subpoenas to the custodian of patient records, compel attendance of witnesses, administer oaths and take testimony concerning all matters within the board's jurisdiction. If a person refuses to obey a subpoena issued by the board, the refusal shall be certified to the superior court and proceedings shall be instituted for contempt of court.

3. Adopt rules:

(a) Prescribing requirements for continuing education for renewal of all licenses issued pursuant to this chapter.

(b) Prescribing educational and experience prerequisites for administering intravenous or intramuscular drugs for the purpose of sedation or for using general anesthetics in conjunction with a dental treatment procedure.

(c) Prescribing requirements for obtaining licenses for retired licensees or licensees who have a disability, including the triennial license renewal fee.

4. Hire consultants to assist the board in the performance of its duties and employ persons to provide investigative, professional and clerical assistance as the board deems necessary.

5. Contract with other state or federal agencies as required to carry out the purposes of this chapter.

6. If determined by the board, order physical, psychological, psychiatric and competency evaluations of licensed dentists, dental therapists and dental hygienists, certified denturists and applicants for licensure and certification at the expense of those individuals.

7. Establish an investigation committee consisting of not more than eleven licensees who are in good standing, who are appointed by the board and who serve at the pleasure of the board to investigate any complaint submitted to the board, initiated by the board or delegated by the board to the investigation committee pursuant to this chapter.

C. The executive director or the executive director's designee may:

1. Issue and renew licenses, certificates and permits to applicants who meet the requirements of this chapter.

2. Initiate an investigation if evidence appears to demonstrate that a dentist, dental therapist, dental hygienist, denturist or restricted permit holder may be engaged in unprofessional conduct or may be unable to safely practice dentistry.

3. Initiate an investigation if evidence appears to demonstrate that a business entity may be engaged in unethical conduct.

4. Subject to board approval, enter into a consent agreement with a dentist, dental therapist, denturist, dental hygienist or restricted permit holder if there is evidence of unprofessional conduct.

5. Subject to board approval, enter into a consent agreement with a business entity if there is evidence of unethical conduct.

6. Refer cases to the board for a formal interview.

7. If delegated by the board, enter into a stipulation agreement with a person under the board's jurisdiction for the treatment, rehabilitation and monitoring of chemical substance abuse or misuse.

D. Members of the board are personally immune from liability with respect to all acts done and actions taken in good faith and within the scope of their authority.

E. The board by rule shall require that a licensee obtain a permit for applying general anesthesia and sedation, shall establish and collect a fee of not more than $300 to cover administrative costs connected with issuing the permit and shall conduct inspections to ensure compliance.

F. The board by rule may establish and collect fees for license verification, board meeting agendas and minutes, published lists and mailing labels.

G. This section does not prohibit the board from conducting its authorized duties in a public meeting.

H. For the purposes of this section:

1. "Good standing" means that a person holds an unrestricted and unencumbered license that has not been suspended or revoked pursuant to this chapter.

2. "Record of complaint" means the document reflecting the final disposition of a complaint or investigation.

§ 32-1208 Failure to respond to subpoena; civil penalty

In addition to any disciplinary action authorized by statute, the board may assess a nondisciplinary civil penalty in an amount not to exceed five hundred dollars for a licensee who fails to respond to a subpoena issued by the board pursuant to this chapter.

§ 32-1209 Admissibility of records in evidence

A copy of any part of the recorded proceedings of the board certified by the executive director, or a certificate by the executive director that any asserted or purported record, name, license number, restricted permit number or action is not entered in the recorded proceedings of the board, may be admitted as evidence in any court in this state. A person making application and paying a fee set by the board may procure from the executive director a certified copy of any portion of the records of the board unless these records are classified as confidential as provided by law. Unless otherwise provided by law, all records concerning an investigation, examination materials, records of examination grading and applicants' performance and transcripts of educational institutions concerning applicants are confidential and are not public records. "Records of applicants' performance" does not include records of whether an applicant passed or failed an examination.

§ 32-1210 Annual report; posting

A. Not later than October 1 of each year, the board shall make an annual written report to the governor for the preceding fiscal year that includes the following information:

1. The number of licensed dentists, dental therapists and hygienists in this state.

2. The number of certified denturists in this state.

3. The number of registered business entities in this state.

4. The number of licenses, certificates and registrations issued during the preceding fiscal year for each license type, certificate and registration.

5. The outcomes with respect to complaints filed with the board and of any formal hearings held in connection with those complaints and the results of those hearings.

6. The facts with respect to persons charged with violations of this chapter.

7. A full and complete statement of financial transactions of the board.

8. Any other matters that the board wishes to include in the report or that the governor requires.

B. On request of the governor, the board shall submit a supplemental report.

C. The reports made pursuant to this section shall be posted on the board's public website.

§ 32-1212 Dental board fund

(L24, Ch. 222, sec. 13. Eff. until 7/1/28)

A. Except as provided in subsection C of this section, pursuant to sections 35-146 and 35-147, the executive director of the board shall each month deposit fifteen percent of all fees, fines and other revenue received by the board in the state general fund and deposit the remaining eighty-five percent in the dental board fund.

B. Monies deposited in the dental board fund are subject to the provisions of section 35-143.01.

C. Monies from administrative penalties received pursuant to section 32-1263.01 shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

§ 32-1212 (Version 2) Dental board fund

(L24, Ch. 222, sec. 14. Eff. 7/1/28)

A. Except as provided in subsection C of this section, pursuant to sections 35-146 and 35-147, the executive director of the board shall each month deposit ten percent of all fees, fines and other revenue received by the board in the state general fund and deposit the remaining ninety percent in the dental board fund.

B. Monies deposited in the dental board fund are subject to the provisions of section 35-143.01.

C. Monies from administrative penalties received pursuant to section 32-1263.01 shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

§ 32-1213 Business entities; registration; renewal; civil penalty; exceptions

A. A business entity may not offer dental services pursuant to this chapter unless:

1. The business entity is registered with the board pursuant to this section.

2. The services are conducted by a licensee pursuant to this chapter.

B. The business entity must file a registration application on a form provided by the board. The application must include:

1. A description of the business entity's services offered to the public.

2. The name of any dentist who is authorized to provide and who is responsible for providing the dental services offered at each office.

3. The names and addresses of the officers and directors of the business entity.

4. The name of the business entity's custodian of records.

5. A registration fee prescribed by the board in rule.

C. A business entity must file a separate registration application and pay a fee for each branch office in this state.

D. A registration expires three years after the date the board issues the registration. A business entity that wishes to renew a registration must submit an application for renewal as prescribed by the board on a triennial basis on a form provided by the board before the expiration date. A business entity that fails to renew the registration before the expiration date is subject to a late fee as prescribed by the board by rule. The board may stagger the dates for renewal applications.

E. The business entity must notify the board in writing within thirty days after any change:

1. In the business entity's name, address or telephone number.

2. In the officers or directors of the business entity.

3. In the name of any dentist who is authorized to provide and who is responsible for providing the dental services in any facility.

4. The name of the business entity's custodian of records who will accept subpoenas and respond to patient records requests.

F. The business entity shall establish a written protocol for the secure storage, transfer and access of the dental records of the business entity's patients. This protocol must include, at a minimum, procedures for:

1. Notifying patients of the future locations of their records if the business entity terminates or sells the practice.

2. Disposing of unclaimed dental records.

3. The timely response to requests by patients for copies of their records.

G. The business entity must notify the board within thirty days after the dissolution of any registered business entity or the closing or relocation of any facility and must disclose to the board the business entity's procedure by which its patients may obtain their records.

H. The board may do any of the following pursuant to its disciplinary procedures if a business entity violates the board's statutes or rules:

1. Refuse to issue a registration.

2. Suspend or revoke a registration.

3. Impose a civil penalty of not more than $2,000 for each violation.

4. Enter a decree of censure.

5. Issue an order prescribing a period and terms of probation that are best adapted to protect the public welfare and that may include a requirement for restitution to a patient for a violation of this chapter or rules adopted pursuant to this chapter.

6. Issue a letter of concern if a business entity's actions may cause the board to take disciplinary action.

I. The board shall deposit, pursuant to sections 35-146 and 35-147, civil penalties collected pursuant to this section in the state general fund.

J. This section does not apply to:

1. A sole proprietorship or partnership that consists exclusively of dentists who are licensed pursuant to this chapter.

2. Any of the following entities licensed under title 20:

(a) A service corporation.

(b) An insurer authorized to transact disability insurance.

(c) A prepaid dental plan organization that does not provide directly for prepaid dental services.

(d) A health care services organization that does not provide directly for dental services.

3. A professional corporation or professional limited liability company, the shares of which are exclusively owned by dentists who are licensed pursuant to this chapter and that is formed to engage in the practice of dentistry pursuant to title 10, chapter 20 or title 29 relating to professional limited liability companies.

4. A facility regulated by the federal government or a state, district or territory of the United States.

5. An administrator or executor of the estate of a deceased dentist or a person who is legally authorized to act for a dentist who has been adjudicated to be mentally incompetent for not more than one year after the date the board receives notice of the dentist's death or incapacitation pursuant to section 32-1270.

K. A facility that offers dental services to the public by persons licensed under this chapter shall be registered by the board unless the facility is any of the following:

1. Owned by a dentist who is licensed pursuant to this chapter.

2. Regulated by the federal government or a state, district or territory of the United States.

L. Except for issues relating to insurance coding and billing that require the name, signature and license number of the dentist providing treatment, this section does not:

1. Authorize a licensee in the course of providing dental services for a business entity registered pursuant to this section to disregard or interfere with a policy or practice established by the business entity for the operation and management of the business.

2. Authorize a business entity registered pursuant to this section to establish or enforce a business policy or practice that may interfere with the clinical judgment of the licensee in providing dental services for the business entity or may compromise a licensee's ability to comply with this chapter.

M. The board shall adopt rules that provide a method for the board to receive the assistance and advice of business entities licensed pursuant to this chapter in all matters relating to the regulation of business entities.

N. An individual currently holding a surrendered or revoked license to practice dentistry or dental hygiene in any state or jurisdiction in the United States may not have a majority ownership interest in the business entity registered pursuant to this section. Revocation and surrender of licensure shall be limited to disciplinary actions resulting in loss of license or surrender of license instead of disciplinary action. Dentists or dental hygienists affected by this subsection shall have one year after the surrender or revocation to divest themselves of their ownership interest. This subsection does not apply to publicly held companies. For the purposes of this subsection, "majority ownership interest" means an ownership interest greater than fifty percent.

Article 2 Licensing

§ 32-1231 Persons not required to be licensed

This chapter does not prohibit:

1. A dentist, dental therapist or dental hygienist who is officially employed in the service of the United States from practicing dentistry in the dentist's, dental therapist's or dental hygienist's official capacity, within the scope of that person's authority, on persons who are enlisted in, directly connected with or under the immediate control of some branch of service of the United States.

2. A person, whether or not licensed by this state, from practicing dental therapy either:

(a) In the discharge of official duties on behalf of the United States government, including the United States department of veterans affairs, the United States public health service and the Indian health service.

(b) While employed by tribal health programs authorized pursuant to Public Law 93-638 or urban Indian health programs.

3. An intern or student of dentistry, dental therapy or dental hygiene from operating in the clinical departments or laboratories of a recognized dental school, recognized dental therapy school, recognized dental hygiene school or hospital under the supervision of a dentist.

4. An unlicensed person from performing for a licensed dentist merely mechanical work on inert matter not within the oral cavity in the construction, making, alteration or repairing of any artificial dental substitute or any dental restorative or corrective appliance, if the casts or impressions for that work have been furnished by a licensed dentist and the work is directly supervised by the dentist for whom done or under a written authorization signed by the dentist, but the burden of proving that written authorization or direct supervision is on the person charged with having violated this provision.

5. A clinician who is not licensed in this state from giving demonstrations, before bona fide dental societies, study clubs and groups of professional students, that are free to the persons on whom made.

6. The state director of dental public health from performing the director's administrative duties as prescribed by law.

7. A dentist or dental hygienist to whom a restricted permit has been issued from practicing dentistry or dental hygiene in this state as provided in sections 32-1237 and 32-1292.

8. A dentist, dental therapist or dental hygienist from practicing for educational purposes on behalf of a recognized dental school, recognized dental therapy school or recognized dental hygiene school.

9. A dentist who holds an active and unrestricted license in another state, territory or possession of the United States from practicing for educational purposes in connection with recognized continuing dental education. A dentist who practices under this paragraph:

(a) May not receive compensation for dental services provided in connection with recognized continuing dental education.

(b) Is subject to the jurisdiction and discipline of the board to the same extent as dentists who are licensed in this state.

(c) May not provide any dental care or services in this state to a person who is either:

(i) Physically unable to safely receive the dental care or services.

(ii) Not mentally competent to knowingly and voluntarily consent to the dental care or services.

(d) Shall file a restricted permit application on a form approved by the board with the provider of the recognized continuing dental education before providing any dental care or services in this state. The provider of the recognized continuing dental education shall retain the dentist's restricted permit application for a period of at least five years.

§ 32-1232 Qualifications of applicant; application; fee; fingerprint clearance card

A. An applicant for licensure shall meet the requirements of section 32-1233 and shall hold a diploma conferring a degree of doctor of dental medicine or doctor of dental surgery from a recognized dental school.

B. Each candidate shall submit a written application to the board accompanied by a nonrefundable Arizona dental jurisprudence examination fee of $300. The board shall waive this fee for candidates who are applying for a restricted permit. Each candidate shall also obtain a valid fingerprint clearance card issued pursuant to section 41-1758.03.

C. The board may deny an application for a license, for license renewal or for a restricted permit if the applicant:

1. Has committed any act that would be cause for censure, probation or suspension or revocation of a license under this chapter.

2. While unlicensed, committed or aided and abetted the commission of any act for which a license is required by this chapter.

3. Knowingly made any false statement in the application.

4. Has had a license to practice dentistry revoked by a dental regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

5. Is currently under suspension or restriction by a dental regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

6. Has surrendered, relinquished or given up a license to practice dentistry in lieu of disciplinary action by a dental regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

D. The board shall suspend an application for a license, for license renewal or for a restricted permit if the applicant is currently under investigation by a dental regulatory board in another jurisdiction. The board shall not issue or deny a license to the applicant until the investigation is resolved.

§ 32-1233 Applicants for licensure; examination requirements

An applicant for licensure shall have passed all of the following:

1. The written national dental board examinations.

2. A clinical examination administered by a state or regional testing agency in the United States within five years preceding filing the application.

3. The Arizona dental jurisprudence examination.

§ 32-1234 Dental consultant license

A. A person may apply for a dental consultant license if the applicant demonstrates to the board's satisfaction that the applicant:

1. Has continuously held a license to practice dentistry for at least twenty-five years issued by one or more states or territories of the United States or the District of Columbia but is not currently licensed to practice dentistry in Arizona.

2. Has not had a license to practice dentistry revoked by a dental regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

3. Is not currently under suspension or restriction by a dental regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

4. Has not surrendered, relinquished or given up a license to practice dentistry in lieu of disciplinary action by a dental regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

5. Meets the applicable requirements of section 32-1232.

6. Meets the requirements of section 32-1233, paragraph 1. If an applicant has taken a state written theory examination instead of the written national dental board examinations, the applicant must provide the board with official documentation of passing the written theory examinations in the state where the applicant holds a current license. The board shall then determine the applicant's eligibility for a license pursuant to this section.

7. Meets the application requirements as prescribed in rule by the board.

B. The board shall suspend an application for a dental consultant license if the applicant is currently under investigation by a dental regulatory board in another jurisdiction in the United States. The board shall not issue or deny a license to the applicant until the investigation is resolved.

C. A person to whom a dental consultant license is issued shall practice dentistry only in the course of the person's employment or on behalf of an entity licensed under title 20 with the practice limited to supervising or conducting utilization review or other claims or case management activity on behalf of the entity licensed pursuant to title 20. A person who holds a dental consultant license is prohibited from providing direct patient care.

D. This section does not require a person to apply for or hold a dental consultant license in order for that person to serve as a consultant to or engage in claims review activity for an entity licensed pursuant to title 20.

E. Except as provided in subsection B of this section, a dental consultant licensee is subject to all of the provisions of this chapter that are applicable to licensed dentists.

§ 32-1235 Reinstatement of license or certificate; application for previously denied license or certificate

A. On written application the board may issue a new license or certificate to a dentist, dental therapist, dental hygienist or denturist whose license or certificate was previously suspended or revoked by the board or surrendered by the applicant if the applicant demonstrates to the board's satisfaction that the applicant is completely rehabilitated with respect to the conduct that was the basis for the suspension, revocation or surrender. In making its decision, the board shall determine:

1. That the applicant has not engaged in any conduct during the suspension, revocation or surrender period that would have constituted a basis for revocation pursuant to section 32-1263.

2. If a criminal conviction was a basis for the suspension, revocation or surrender, that the applicant's civil rights have been fully restored pursuant to statute or any other applicable recognized judicial or gubernatorial order.

3. That the applicant has made restitution to any aggrieved person as ordered by a court of competent jurisdiction.

4. That the applicant demonstrates any other standard of rehabilitation the board determines is appropriate.

B. Except as provided in subsection C of this section, a person may not submit an application for reinstatement less than five years after the date of suspension, revocation or surrender.

C. The board shall vacate its previous order to suspend or revoke a license or certificate if that suspension or revocation was based on a conviction of a felony or an offense involving moral turpitude and that conviction has been reversed on appeal. The person may submit an application for reinstatement as soon as the court enters the reversal.

D. An applicant for reinstatement must comply with all initial licensing or certification requirements prescribed by this chapter.

E. A person whose application for a license or certificate has been denied for failure to meet academic requirements may apply for licensure or certification not less than two years after the denial.

F. A person whose application for a license has been denied pursuant to section 32-1232, subsection C may apply for licensure not less than five years after the denial.

§ 32-1236 Dentist triennial licensure; continuing education; license reinstatement; license for each place of practice; notice of change of address or place of practice; retired and disabled license status; penalties

A. Except as provided in section 32-4301, a license expires thirty days after the licensee's birth month every third year. On or before the last day of the licensee's birth month every third year, every licensed dentist shall submit to the board a complete renewal application and pay a license renewal fee of not more than $650, established by a formal vote of the board. At least once every three years, before establishing the fee, the board shall review the amount of the fee in a public meeting. Any change in the amount of the fee shall be applied prospectively to a licensee at the time of licensure renewal. The fee prescribed by this subsection does not apply to a retired dentist or to a dentist with a disability.

B. A licensee shall include a written affidavit with the renewal application that affirms that the licensee complies with board rules relating to continuing education requirements. A licensee is not required to complete the written affidavit if the licensee received an initial license within the year immediately preceding the expiration date of the license or the licensee is in disabled status. If the licensee is not in compliance with board rules relating to continuing education, the board may grant an extension of time to complete these requirements if the licensee includes a written request for an extension with the renewal application instead of the written affidavit and the renewal application is received on or before the last day of the licensee's birth month of the expiration year. The board shall consider the extension request based on criteria prescribed by the board by rule. If the board denies an extension request, the license expires thirty days after the licensee's birth month.

C. A person applying for licensure for the first time in this state shall pay a prorated fee for the period remaining until the licensee's next birth month. This fee shall not exceed one-third of the fee established pursuant to subsection A of this section. Subsequent licensure renewal shall be conducted pursuant to this section.

D. An expired license may be reinstated by submitting a complete renewal application within the twenty-four-month period immediately following the expiration of the license with payment of the renewal fee and a $100 penalty. Whenever issued, reinstatement is as of the date of application and entitles the applicant to licensure only for the remainder of the applicable three-year period. If a person does not reinstate a license pursuant to this subsection, the person must reapply for licensure pursuant to this chapter.

E. Each licensee must provide to the board in writing both of the following:

1. A primary mailing address.

2. The address for each place of practice.

F. A licensee maintaining more than one place of practice shall obtain from the board a duplicate license for each office. A fee set by the board shall be charged for each duplicate license. The licensee shall notify the board in writing within ten days after opening the additional place or places of practice. The board shall impose a penalty of $50 for failure to notify the board.

G. A licensee who is fully retired and a licensee who has a permanent disability may contribute services to a recognized charitable institution and still retain that classification for triennial registration purposes on payment of a reduced renewal fee as prescribed by the board by rule.

H. A licensee applying for retired or disabled status shall:

1. Relinquish any prescribing privileges and shall attest by affidavit that the licensee has surrendered to the United States drug enforcement administration any registration issued pursuant to the federal controlled substances act and has surrendered to the board any registration issued pursuant to section 36-2606.

2. If the licensee holds a permit to dispense drugs and devices pursuant to section 32-1298, surrender that permit to the board.

3. Attest by affidavit that the licensee is not currently engaged in the practice of dentistry.

I. A licensee who changes the licensee's primary mailing address or place of practice address shall notify the board of that change in writing within ten days. The board shall impose a penalty of $50 if a licensee fails to notify the board of the change within that time. The board shall increase the penalty imposed to $100 if a licensee fails to notify it of the change within thirty days.

§ 32-1237 Restricted permit

A. A person may apply for a restricted permit if the applicant demonstrates to the board's satisfaction that the applicant:

1. Has a pending contract with a recognized charitable dental clinic or organization or will be practicing for educational purposes in connection with and while enrolled in recognized continuing dental education that offers dental services without compensation or at a rate that only reimburses the clinic for dental supplies and overhead costs and the applicant will receive no compensation for dental services provided at the clinic or organization or in connection with the recognized continuing dental education.

2. Has a license to practice dentistry issued by another state or territory of the United States or the District of Columbia.

3. Has been actively engaged in one or more of the following for at least three years immediately preceding the application:

(a) The practice of dentistry.

(b) An approved dental residency training program.

(c) Postgraduate training deemed by the board equivalent to an approved dental residency training program.

4. Is competent and proficient to practice dentistry.

5. Meets the requirements of section 32-1232, subsection A, other than the requirement to meet section 32-1233.

B. For the purposes of meeting the requirements of subsection A of this section, the provider of the recognized continuing dental education, before the commencement of the recognized continuing dental education, shall notify the board of the restricted permit applicants the provider has accepted that meet the requirements of section 32-1231, paragraph 9. The board shall acknowledge receipt of the notification within five business days after the later of receiving either:

1. The notification.

2. A copy of the applicants' valid fingerprint clearance cards.

§ 32-1238 Issuance of restricted permit

A. The board shall issue a restricted permit within thirty days after the date the board receives a complete application that meets the requirements of section 32-1232, subsection B from an applicant that meets the requirements of section 32-1237.

B. A restricted permit may be issued by the board without examination or payment of fee for a period not to exceed one year and shall automatically expire at that time. The board may, in its discretion and pursuant to rules or regulations not inconsistent with this chapter, renew such restricted permit for periods not to exceed one year.

C. For the purposes of this section, the acknowledgment from the board pursuant to section 32-1237, subsection B serves as the issuance of a restricted permit to an applicant who will be practicing for educational purposes in connection with and while enrolled in recognized continuing dental education.

§ 32-1239 Practice under restricted permit

A person to whom a restricted permit is issued may practice dentistry only in the course of the person's employment by a recognized charitable dental clinic or organization or for educational purposes in connection with and while enrolled in recognized continuing dental education as approved by the board. The person shall file a copy of the person's employment contract or confirmation of enrollment with recognized continuing dental education with the board, and the contract or confirmation shall contain the following provisions:

1. The applicant understands and acknowledges that if the applicant's employment by the charitable dental clinic or organization or enrollment in the recognized continuing dental education is terminated before the expiration of the applicant's restricted permit, the applicant's restricted permit will be automatically revoked and the applicant will voluntarily surrender the permit to the board and will no longer be eligible to practice unless or until the applicant has satisfied the requirements of section 32-1237 or has successfully passed the examination as provided in this article.

2. The person must be either:

(a) Employed by a dental clinic or organization that is organized and operated for charitable purposes offering dental services without compensation. The term "employed" as used in this subdivision includes the performance of dental services without compensation.

(b) Enrolled in recognized continuing dental education and providing charitable dental services, for which the person may not receive any compensation, in connection with recognized continuing dental education with an organization that is exempt from taxation pursuant to section 501(c)(3) of the internal revenue code.

3. The person is subject to all the provisions of this chapter applicable to licensed dentists and to the jurisdiction and discipline of the board for all dental care and services provided under the restricted permit.

§ 32-1240 Licensure by credential; examinations; waiver; fee

A. The board by rule may waive the examination requirements of this article on receipt of evidence satisfactory to the board that the applicant has passed the clinical examination of another state or testing agency more than five years before submitting an application for licensure pursuant to this chapter and the other state or testing agency maintains a standard of licensure that is substantially equivalent to that of this state as determined by the board. The board by rule shall require:

1. A minimum number of active practice hours within a specific time period before the applicant submits the application. The board shall define what constitutes active practice.

2. An affirmation that the applicant has completed the continuing education requirements of the jurisdiction where the applicant is licensed.

B. The applicant shall pay a licensure by credential fee of not more than two thousand dollars as prescribed by the board.

§ 32-1241 Training permits; qualified military health professionals

A. The board shall issue a training permit to a qualified military health professional who is practicing dentistry in the United States armed forces and who is discharging the health professional's official duties by participating in a clinical training program based at a civilian hospital affiliated with the United States department of defense.

B. Before the board issues the training permit, the qualified military health professional must submit a written statement from the United States department of defense that the applicant:

1. Is a member of the United States armed forces who is performing duties for and at the direction of the United States department of defense at a location in this state approved by the United States department of defense.

2. Has a current license or is credentialed to practice dentistry in a jurisdiction of the United States.

3. Meets all required qualification standards prescribed pursuant to 10 United States Code section 1094(d) relating to the licensure requirements for health professionals.

4. Has not had a license to practice revoked by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter.

5. Is not currently under investigation, suspension or restriction by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter.

6. Has not surrendered, relinquished or given up a license in lieu of disciplinary action by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter. This paragraph does not prevent the board from considering the request for a training permit of a qualified military health professional who surrendered, relinquished or gave up a license in lieu of disciplinary action by a regulatory board in another jurisdiction if that regulatory board subsequently reinstated the qualified military health professional's license.

C. The qualified military health professional may not open an office or designate a place to meet patients or receive calls relating to the practice of dentistry in this state outside of the facilities and programs of the approved civilian hospital.

D. The qualified military health professional may not practice outside of the professional's scope of practice.

E. A training permit issued pursuant to this section is valid for one year. The qualified military health professional may apply annually to the board to renew the permit. With each application to renew the qualified military health professional must submit a written statement from the United States department of defense asking the board for continuation of the training permit.

F. The board may not impose a fee to issue or renew a training permit to a qualified military health professional pursuant to this section.

Article 3 Regulation

§ 32-1261 Practicing without license; classification

Except as otherwise provided a person is guilty of a class 6 felony who, without a valid license or business entity registration as prescribed by this chapter:

1. Practices dentistry or any branch of dentistry as described in section 32-1202.

2. In any manner or by any means, direct or indirect, advertises, represents or claims to be engaged or ready and willing to engage in that practice as described in section 32-1202.

3. Manages, maintains or carries on, in any capacity or by any arrangement, a practice, business, office or institution for the practice of dentistry, or that is advertised, represented or held out to the public for that purpose.

§ 32-1262 Corporate practice; display of name and license receipt or license; duplicate licenses; fee

A. It is lawful to practice dentistry as a professional corporation or professional limited liability company.

B. It is lawful to practice dentistry as a business organization if the business organization is registered as a business entity pursuant to this chapter.

C. It is lawful to practice dentistry under a name other than that of the licensed practitioners if the name is not deceptive or misleading.

D. If practicing as a professional corporation or professional limited liability company, the name and address of record of the dentist owners of the practice shall be conspicuously displayed at the entrance to each owned location.

E. If practicing as a business organization that is registered as a business entity pursuant to section 32-1213, the receipt for the current registration period must be conspicuously displayed at the entrance to each place of practice.

F. A licensee's receipt for the current licensure period shall be displayed in the licensee's place of practice in a manner that is always readily observable by patients or visitors and shall be exhibited to members of the board or to duly authorized agents of the board on request. The receipt for the licensure period immediately preceding shall be kept on display until replaced by the receipt for the current period. During the year in which the licensee is first licensed and until the receipt for the following period is received, the license shall be displayed in lieu of the receipt.

G. If a dentist maintains more than one place of practice, the board may issue one or more duplicate licenses or receipts on payment of a fee fixed by the board not exceeding twenty-five dollars for each duplicate.

H. If a licensee legally changes the licensee's name from that in which the license was originally issued, the board, on satisfactory proof of the change and surrender of the original license, if obtainable, may issue a new license in the new name and shall charge the established fee for duplicate licenses.

§ 32-1263 Grounds for disciplinary action; definition

A. The board may invoke disciplinary action against any person who is licensed under this chapter for any of the following reasons:

1. Unprofessional conduct as defined in section 32-1201.01.

2. Conviction of a felony or of a misdemeanor involving moral turpitude, in which case the record of conviction or a certified copy is conclusive evidence.

3. Physical or mental incompetence to practice pursuant to this chapter.

4. Committing or aiding, directly or indirectly, a violation of or noncompliance with any provision of this chapter or of any rules adopted by the board pursuant to this chapter.

5. Dental incompetence as defined in section 32-1201.

B. This section does not establish a cause of action against a licensee or a registered business entity that makes a report of unprofessional conduct or unethical conduct in good faith.

C. The board may take disciplinary action against a business entity that is registered pursuant to this chapter for unethical conduct.

D. For the purposes of this section, "unethical conduct" means the following acts occurring in this state or elsewhere:

1. Failing to report in writing to the board any evidence that a dentist, dental therapist, denturist or dental hygienist is or may be professionally incompetent, is or may be guilty of unprofessional conduct, is or may be impaired by drugs or alcohol or is or may be mentally or physically unable to safely engage in the permissible activities of a dentist, dental therapist, denturist or dental hygienist.

2. Falsely reporting to the board that a dentist, dental therapist, denturist or dental hygienist is or may be guilty of unprofessional conduct, is or may be impaired by drugs or alcohol or is or may be mentally or physically unable to safely engage in the permissible activities of a dentist, dental therapist, denturist or dental hygienist.

3. Obtaining or attempting to obtain a registration or registration renewal by fraud or by misrepresentation.

4. Knowingly filing with the board any application, renewal or other document that contains false information.

5. Failing to register or failing to submit a renewal registration with the board pursuant to section 32-1213.

6. Failing to provide the following persons with access to any place for which a registration has been issued or for which an application for a registration has been submitted in order to conduct a site investigation, inspection or audit:

(a) The board or its employees or agents.

(b) An authorized federal or state official.

7. Failing to notify the board of a change in officers and directors, a change of address, a change in the dentists providing services or a change in the custodian of records pursuant to section 32-1213, subsection E.

8. Failing to maintain or provide patient records pursuant to section 32-1264.

9. Obtaining a fee by fraud or misrepresentation or wilfully or intentionally filing a fraudulent claim with a third party for services rendered or to be rendered to a patient.

10. Engaging in repeated irregularities in billing.

11. Engaging in the following advertising practices:

(a) Publishing or circulating, directly or indirectly, any false or fraudulent or misleading statements concerning the skill, methods or practices of a registered business entity, a licensee or any other person.

(b) Advertising in any manner that tends to deceive or defraud the public.

12. Failing to comply with a board subpoena in a complete or timely manner.

13. Failing to comply with a final board order, including a decree of censure, a period or term of probation, a consent agreement or a stipulation.

14. Employing or aiding and abetting unlicensed persons to perform work that must be done by a person licensed pursuant to this chapter.

15. Engaging in any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.

16. Engaging in a policy or practice that interferes with the clinical judgment of a licensee providing dental services for a business entity or compromising a licensee's ability to comply with this chapter.

17. Engaging in a practice by which a dental hygienist, dental therapist or dental assistant exceeds the scope of practice or restrictions included in a written collaborative practice agreement.

18. Failing to provide medical records or payment records to a third party, including current or former associates, employees or dentists of the practice, as required by sections 12-2294 and 12-2294.01.

§ 32-1263.01 Types of disciplinary action; letter of concern; judicial review; notice; removal of notice; violation; classification

A. The board may take any one or a combination of the following disciplinary actions against any person licensed under this chapter:

1. Revocation of license to practice.

2. Suspension of license to practice.

3. Entering a decree of censure, which may require that restitution be made to an aggrieved party.

4. Issuance of an order fixing a period and terms of probation best adapted to protect the public health and safety and to rehabilitate the licensed person. The order fixing a period and terms of probation may require that restitution be made to the aggrieved party.

5. Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter.

6. Imposition of a requirement for restitution of fees to the aggrieved party.

7. Imposition of restrictions on the scope of practice.

8. Imposition of peer review and professional education requirements.

9. Imposition of community service.

B. The board may issue a letter of concern if a licensee's continuing practices may cause the board to take disciplinary action. The board may also issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

C. Failure to comply with any order of the board, including an order of censure or probation, is cause for suspension or revocation of a license.

D. All disciplinary and final nondisciplinary actions or orders, not including letters of concern or advisory letters, issued by the board against a licensee or certificate holder shall be posted to that licensee's or certificate holder's profile on the board's website. For the purposes of this subsection, only final nondisciplinary actions and orders that are issued after January 1, 2018 shall be posted.

E. Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

F. If the state board of dental examiners acts to modify any dentist's prescription-writing privileges, it shall immediately notify the Arizona state board of pharmacy of the modification.

G. The board may post a notice of its suspension or revocation of a license at the licensee's place of business. This notice shall remain posted for sixty days. A person who removes this notice without board or court authority before that time is guilty of a class 3 misdemeanor.

H. A licensee or certificate holder shall respond in writing to the board within twenty days after a notice of hearing is served. A licensee who fails to answer the charges in a complaint and notice of hearing issued pursuant to this article and title 41, chapter 6, article 10 is deemed to admit the acts charged in the complaint, and the board may revoke or suspend the license without a hearing.

§ 32-1263.02 Investigation and adjudication of complaints; disciplinary action; civil penalty; immunity; subpoena authority; definitions

A. The board on its own motion, or the investigation committee if established by the board, may investigate any evidence that appears to show the existence of any of the causes or grounds for disciplinary action as provided in section 32-1263. The board or investigation committee may investigate any complaint that alleges the existence of any of the causes or grounds for disciplinary action as provided in section 32-1263. The board shall not act on its own motion or on a complaint received by the board if the allegation of unprofessional conduct, unethical conduct or any other violation of this chapter against a licensee occurred more than four years before the complaint is received by the board. The four-year time limitation does not apply to:

1. Medical malpractice settlements or judgments, allegations of sexual misconduct or an incident or occurrence that involved a felony, diversion of a controlled substance or impairment while practicing by the licensee.

2. The board's consideration of the specific unprofessional conduct related to the licensee's failure to disclose conduct or a violation as required by law.

B. At the request of the complainant, the board or investigation committee shall not disclose to the respondent the complainant's name unless the information is essential to proceedings conducted pursuant to this article.

C. The board or investigation committee shall conduct necessary investigations, including interviews between the investigation committee or representatives of the board and the licensee with respect to any information obtained by or filed with the board under subsection A of this section or obtained by the board or investigation committee during the course of an investigation. The results of the investigation conducted by the investigation committee, including any recommendations from the investigation committee for disciplinary action against any licensee, shall be forwarded to the board for its review.

D. The board or investigation committee may designate one or more persons of appropriate competence to assist the board or investigation committee with any aspect of an investigation.

E. If, based on the information the board receives under subsection A or C of this section, the board finds that the public health, safety or welfare imperatively requires emergency action and incorporates a finding to that effect in its order, the board may order a summary suspension of a licensee's license pursuant to section 41-1092.11 pending proceedings for revocation or other action.

F. If a complaint refers to quality of care, the patient may be referred for a clinical evaluation at the discretion of the board or the investigation committee.

G. If, after completing its investigation or review pursuant to this section, the board finds that the information provided pursuant to subsection A or C of this section is insufficient to merit disciplinary action against a licensee, the board may take any of the following actions:

1. Dismiss the complaint.

2. Issue a nondisciplinary letter of concern to the licensee.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

4. Assess a nondisciplinary civil penalty in an amount not to exceed $500 if the complaint involves the licensee's failure to respond to a board subpoena.

H. If, after completing its investigation or review pursuant to this section, the board finds that the information provided pursuant to subsection A or C of this section is sufficient to merit disciplinary action against a licensee, the board may request that the licensee participate in a formal interview before the board. If the licensee refuses or accepts the invitation for a formal interview and the results indicate that grounds may exist for revocation or suspension, the board shall issue a formal complaint and order that a formal hearing be held pursuant to title 41, chapter 6, article 10. If, after completing a formal interview, the board finds that the protection of the public requires emergency action, it may order a summary suspension of the license pursuant to section 41-1092.11 pending formal revocation proceedings or other action authorized by this section.

I. If, after completing its investigation or review pursuant to this section, the board finds that the information provided pursuant to subsection A or C of this section is sufficient to merit revocation or suspension of the license, the board may issue a formal complaint and order that a formal hearing be held pursuant to title 41, chapter 6, article 10.

J. If, after completing a formal interview or formal hearing, the board finds that the information provided under subsection A or C of this section is insufficient to merit suspension or revocation of the license, it may take any of the following actions:

1. Dismiss the complaint.

2. Order disciplinary action pursuant to section 32-1263.01, subsection A.

3. Enter into a consent agreement with the licensee for disciplinary action.

4. Order nondisciplinary continuing education pursuant to section 32-1263.01, subsection B.

5. Issue a nondisciplinary letter of concern to the licensee.

K. A copy of the board's order issued pursuant to this section shall be given to the complainant and to the licensee. Pursuant to title 41, chapter 6, article 10, the licensee may petition for rehearing or review.

L. Any person who in good faith makes a report or complaint as provided in this section to the board or to any person or committee acting on behalf of the board is not subject to liability for civil damages as a result of the report.

M. The board, through its president or the president's designee, may issue subpoenas to compel the attendance of witnesses and the production of documents and may administer oaths, take testimony and receive exhibits in evidence in connection with an investigation initiated by the board or a complaint filed with the board. In case of disobedience to a subpoena, the board may invoke the aid of any court of this state in requiring the attendance and testimony of witnesses and the production of documentary evidence.

N. Patient records, including clinical records, medical reports, laboratory statements and reports, files, films, reports or oral statements relating to diagnostic findings or treatment of patients, any information from which a patient or a patient's family may be identified or information received and records kept by the board as a result of the investigation procedures taken pursuant to this chapter, are not available to the public.

O. The board may charge the costs of formal hearings conducted pursuant to title 41, chapter 6, article 10 to a licensee it finds to be in violation of this chapter.

P. The board may accept the surrender of an active license from a licensee who is subject to a board investigation and who admits in writing to any of the following:

1. Being unable to safely engage in the practice of dentistry.

2. Having committed an act of unprofessional conduct.

3. Having violated this chapter or a board rule.

Q. In determining the appropriate disciplinary action under this section, the board may consider any previous nondisciplinary and disciplinary actions against a licensee.

R. If a licensee who is currently providing dental services for a registered business entity believes that the registered business entity has engaged in unethical conduct as defined pursuant to section 32-1263, subsection D, paragraph 16, the licensee must do both of the following before filing a complaint with the board:

1. Notify the registered business entity in writing that the licensee believes that the registered business entity has engaged in a policy or practice that interferes with the clinical judgment of the licensee or that compromises the licensee's ability to comply with the requirements of this chapter. The licensee shall specify in the notice the reasons for this belief.

2. Provide the registered business entity with at least ten calendar days to respond in writing to the assertions made pursuant to paragraph 1 of this subsection.

S. A licensee who files a complaint pursuant to subsection R of this section shall provide the board with a copy of the licensee's notification and the registered business entity's response, if any.

T. A registered business entity may not take any adverse employment action against a licensee because the licensee complies with the requirements of subsection R of this section.

U. For the purposes of this section:

1. "License" includes a certificate issued pursuant to this chapter.

2. "Licensee" means a dentist, dental therapist, dental hygienist, denturist, dental consultant, restricted permit holder or business entity regulated pursuant to this chapter.

§ 32-1263.03 Investigation committee; complaints; termination; review

A. If established by the board, the investigation committee may terminate a complaint if the investigation committee's review indicates that the complaint is without merit and that termination is appropriate.

B. The investigation committee may not terminate a complaint if a court has entered a medical malpractice judgment against a licensee.

C. At each regularly scheduled board meeting, the investigation committee shall provide to the board a list of each complaint the investigation committee terminated pursuant to subsection A of this section since the preceding board meeting. On review, the board shall approve, modify or reject the investigation committee's action.

D. A person who is aggrieved by an action taken by the investigation committee pursuant to subsection A of this section may file a written request that the board review that action. The request must be filed within thirty days after that person is notified of the investigation committee's action by personal delivery or, if the notification is mailed to that person's last known residence or place of business, within thirty-five days after the date on the notification. At the next regular board meeting, the board shall review the investigation committee's action. On review, the board shall approve, modify or reject the investigation committee's action.

§ 32-1264 Maintenance of records

A. A person who is licensed or certified pursuant to this chapter shall make legible permanent and contemporaneous written or electronic records concerning all diagnoses, evaluations and treatments of each patient of record. The owner of a dental practice or a registered business entity shall maintain all written and electronic records. Electronic records must be retrievable in paper form. These records shall include:

1. All treatment notes, including current health history and the results of clinical examinations.

2. Prescription and dispensing information, including all drugs, medicaments and dental materials used for patient care.

3. A diagnosis and treatment plan.

4. Dental and periodontal charting. Charting must include existing restorations, areas of requested care and notation of visual oral examination describing any areas of potential pathology or radiographic irregularities.

5. Documentation of informed consent.

6. All radiographs.

B. Records are available for review and for treatment purposes to the dentist, dental therapist, dental hygienist or denturist providing care.

C. On request, the licensee, registered business entity or certificate holder shall allow properly authorized board personnel to have access to the licensee's or certificate holder's place of practice to conduct an inspection and must make the licensee's or certificate holder's records, books and documents available to the board free of charge as part of an investigation process.

D. Within fifteen business days after a patient's written request, that patient's dentist, dental therapist, dental hygienist or denturist or a registered business entity shall transfer legible and diagnostic quality copies of that patient's records to another licensee or certificate holder or that patient. The patient may be charged for the reasonable costs of copying and forwarding these records. A dentist, dental therapist, dental hygienist, denturist or registered business entity may require that payment of reproduction costs be made in advance, unless the records are necessary for continuity of care, in which case the records shall not be withheld. Copies of records shall not be withheld because of an unpaid balance for dental services.

E. Unless otherwise required by law, a person who is licensed or certified pursuant to this chapter or a business entity that is registered pursuant to this chapter must retain the original or a copy of a patient's dental records as follows:

1. If the patient is an adult, for at least six years after the last date the adult patient received dental services from that provider.

2. If the patient is a child, for at least three years after the child's eighteenth birthday or for at least six years after the last date the child received dental services from the provider, whichever occurs later.

F. A person who is licensed or certified pursuant to this chapter and who is an associate or employee of a dental practice is not responsible for storing or retaining medical records but shall compile and record the records in the customary manner.

G. A licensee or business entity shall release treatment records to third parties, including current and former associates, employees or dentists of the practice, as required by sections 12-2294 and 12-2294.01.

H. When a dentist retires or sells a practice, or when a registered business entity closes or sells a practice, the dentist or registered business entity shall take reasonable measures to ensure that the patient records are retained pursuant to this section.

§ 32-1265 Interpretation of chapter

Nothing in this chapter shall be construed to abridge a license issued under laws of this state relating to medicine or surgery.

§ 32-1266 Prosecution of violations

The attorney general shall act for the board in all matters requiring legal assistance, but the board may employ other or additional counsel in its own behalf. The board shall assist prosecuting officers in enforcement of this chapter, and in so doing may engage suitable persons to assist in investigations and in the procurement and presentation of evidence. Subpoenas or other orders issued by the board may be served by any officer empowered to serve processes, who shall receive the fees prescribed by law. Expenditures made in carrying out provisions of this section shall be paid from the dental board fund.

§ 32-1267 Use of fraudulent instruments; classification

A person is guilty of a class 5 felony who:

1. Knowingly presents to or files with the board as his own a diploma, degree, license, certificate or identification belonging to another, or which is forged or fraudulent.

2. Exhibits or displays any instrument described in paragraph 1 with intent that it be used as evidence of the right of such person to practice dentistry in this state.

3. With fraudulent intent alters any instrument described in paragraph 1 or uses or attempts to use it when so altered.

4. Sells, transfers or offers to sell or transfer, or who purchases, procures or offers to purchase or procure a diploma, license, certificate or identification, with intent that it be used as evidence of the right to practice dentistry in this state by a person other than the one to whom it belongs or is issued.

§ 32-1268 Violations; classification; required proof

A. A person is guilty of a class 2 misdemeanor who:

1. Employs, contracts with, or by any means procures the assistance of, or association with, for the purpose of practicing dentistry, a person not having a valid license therefor.

2. Fails to obey a summons or other order regularly and properly issued by the board.

3. Violates any provision of this chapter for which the penalty is not specifically prescribed.

B. In a prosecution or hearing under this chapter, it is necessary to prove only a single act of violation and not a general course of conduct, and where the violation is continued over a period of one or more days each day constitutes a separate violation subject to the penalties prescribed in this chapter.

§ 32-1269 Violation; classification; injunctive relief

A. A person convicted under this chapter is guilty of a class 2 misdemeanor unless another classification is specifically prescribed in this chapter. Violations shall be prosecuted by the county attorney and tried before the superior court in the county in which the violation occurs.

B. In addition to penalties provided in this chapter, the courts of the state are vested with jurisdiction to prevent and restrain violations of this chapter as nuisances per se, and the county attorneys shall, and the board may, institute proceedings in equity to prevent and restrain violations. A person damaged, or threatened with loss or injury, by reason of a violation of this chapter is entitled to obtain injunctive relief in any court of competent jurisdiction against any damage or threatened loss or injury by reason of a violation of this chapter.

§ 32-1270 Deceased or incapacitated dentists; notification

A. An administrator or executor of the estate of a deceased dentist, or a person who is legally authorized to act for a dentist who has been adjudicated to be mentally incompetent, must notify the board within sixty days after the dentist's death or incapacitation. The administrator or executor may employ a licensed dentist for a period of not more than one year to:

1. Continue the deceased or incapacitated dentist's practice.

2. Conclude the affairs of the deceased or incapacitated dentist, including the sale of any assets.

B. An administrator or executor operating a practice pursuant to this section for more than one year must register as a business entity pursuant to section 32-1213.

§ 32-1271 Marking of dentures for identification; retention and release of information

A. Every complete upper or lower denture fabricated by a licensed dentist, or fabricated pursuant to the dentist's work order, must be marked with the patient's name unless the patient objects. The marking must be done during fabrication and must be permanent, legible and cosmetically acceptable. The dentist or the dental laboratory shall determine the location of the marking and the methods used to implant or apply it. The dentist must inform the patient that the marking is used only to identify the patient, and the patient may choose which marking is to appear on the dentures.

B. The dentist must retain the records of marked dentures and may not release the records to any person except to law enforcement officers in any emergency that requires personal identification by means of dental records or to anyone authorized by the patient to receive this information.

§ 32-1272 Dental anesthesia; requirements

A. A dental office or dental clinic at which general anesthesia or sedation is administered must contain properly operating equipment and supplies as prescribed by the board in rule and have proper emergency response protocols in place, including advanced cardiac life support and airway management and pediatric advanced life support, as applicable, when administering general anesthesia or sedation as prescribed by the board in rule that is consistent with the standards and practices recommended by the American heart association.

B. A qualified anesthesia provider who is licensed by the board and who fails to comply with the requirements of this section or applicable board rules commits an act that constitutes a danger to the health, welfare or safety of the public pursuant to section 32-1201.01.

C. If a qualified anesthesia provider who is not licensed by the state board of dental examiners fails to comply with the requirements of this section or applicable board rules, the state board of dental examiners shall promptly report the qualified anesthesia provider's conduct to the regulatory board that licenses the qualified anesthesia provider. If an adverse anesthesia outcome involves a qualified anesthesia provider who is not licensed by the state board of dental examiners, the state board of dental examiners shall promptly report the adverse anesthesia outcome to the regulatory board that licenses the qualified anesthesia provider.

D. If a death or an incident requiring emergency medical response occurs in a dental office or dental clinic during the administration of or recovery from general anesthesia or sedation by a qualified anesthesia provider, the treating dentist shall submit a report of the incident to the state board of dental examiners within seven business days after the occurrence. If the incident involves a qualified anesthesia provider who is not licensed by the state board of dental examiners, the state board of dental examiners shall immediately forward a copy of the incident report to the regulatory board that licenses the qualified anesthesia provider.

Article 3.1 Licensing and Regulation of Dental Therapists

§ 32-1276 Definitions

In this article, unless the context otherwise requires:

1. "Applicant" means a person who is applying for licensure to practice dental therapy in this state.

2. "Direct supervision" means that a licensed dentist is present in the office and available to provide treatment or care to a patient and observe a dental therapist's work.

3. "Licensee" means a person who holds a license to practice dental therapy in this state.

§ 32-1276.01 Application for licensure; requirements; fingerprint clearance card; denial or suspension of application

A. An applicant for licensure as a dental therapist in this state shall do all of the following:

1. Apply to the board on a form prescribed by the board.

2. Verify under oath that all statements in the application are true to the applicant's knowledge.

3. Enclose with the application:

(a) A recent photograph of the applicant.

(b) The application fee established by the board by rule.

B. The board may grant a license to practice dental therapy to an applicant who meets all of the following requirements:

1. Is licensed as a dental hygienist pursuant to article 4 of this chapter.

2. Graduates from a dental therapy education program that is accredited by or holds an initial accreditation from the American dental association commission on dental accreditation and that is offered through an accredited higher education institution recognized by the United States department of education.

3. Successfully passes, both of the following:

(a) Within five years before filing the application, a clinical examination in dental therapy administered by a state or testing agency in the United States.

(b) The Arizona dental jurisprudence examination.

4. Is not subject to any grounds for denial of the application under this chapter.

5. Obtains a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1.

6. Meets all requirements for licensure established by the board by rule.

C. The board may deny an application for licensure or license renewal if the applicant:

1. Has committed an act that would be cause for censure, probation or suspension or revocation of a license under this chapter.

2. While unlicensed, committed or aided and abetted the commission of an act for which a license is required by this chapter.

3. Knowingly made any false statement in the application.

4. Has had a license to practice dental therapy revoked by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

5. Is currently suspended or restricted by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

6. Has surrendered, relinquished or given up a license to practice dental therapy instead of having disciplinary action taken against the applicant by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

D. The board shall suspend an application for licensure if the applicant is currently under investigation by a dental regulatory board in another jurisdiction. The board shall not issue a license or deny an application for licensure until the investigation is completed.

§ 32-1276.02 Dental therapist triennial licensure; continuing education; license renewal and reinstatement; fees; civil penalties; retired and disabled license status

A. Except as provided in section 32-4301, a license issued under this article expires thirty days after the licensee's birth month every third year. On or before the last day of the licensee's birth month every third year, each licensed dental therapist shall submit to the board a complete renewal application and pay a license renewal fee established by a formal vote of the board. At least once every three years, before establishing the fee, the board shall review the amount of the fee in a public meeting. Any change in the amount of the fee shall be applied prospectively to a licensee at the time of licensure renewal. The fee prescribed by this subsection does not apply to a retired dental therapist or to a dental therapist with a disability.

B. A licensee shall include a written affidavit with the renewal application that affirms that the licensee complies with board rules relating to continuing education requirements. A licensee is not required to complete the written affidavit if the licensee received an initial license within the year immediately preceding the expiration date of the license or the licensee is in disabled status. If the licensee is not in compliance with board rules relating to continuing education, the board may grant an extension of time to complete these requirements if the licensee includes a written request for an extension with the renewal application instead of the written affidavit and the renewal application is received on or before the last day of the licensee's birth month of the expiration year. The board shall consider the extension request based on criteria prescribed by the board by rule. If the board denies an extension request, the license expires thirty days after the licensee's birth month of the expiration year.

C. An applicant for a dental therapy license for the first time in this state shall pay a prorated fee for the period remaining until the licensee's next birthday. This fee may not exceed one-third of the fee prescribed pursuant to subsection A of this section. Subsequent applications shall be conducted pursuant to this section.

D. An expired license may be reinstated by submitting a complete renewal application within the twenty-four-month period immediately following the expiration of the license with payment of the renewal fee and a $100 penalty. When the license is issued, reinstatement is as of the date of application and entitles the applicant to licensure only for the remainder of the applicable three-year period. If a person does not reinstate a license pursuant to this subsection, the person must reapply for licensure pursuant to this article.

E. A licensee shall notify the board in writing within ten days after the licensee changes the primary mailing address listed with the board. The board shall impose a civil penalty of $50 if a licensee fails to notify the board of the change within that time. The board shall increase the civil penalty to $100 if a licensee fails to notify the board of the change within thirty days.

F. A licensee who is at least sixty-five years of age and who is fully retired and a licensee who has a permanent disability may contribute services to a recognized charitable institution and still retain that classification for triennial registration purposes by paying a reduced renewal fee as prescribed by the board by rule.

G. A licensee is not required to maintain a dental hygienist license.

§ 32-1276.03 Practice of dental therapy; authorized procedures; supervision requirements; restrictions

A. A person is deemed to be a practicing dental therapist if the person does any of the acts or performs any operations included in the general practice of dental therapists or dental therapy or any related and associated duties.

B. Either under the direct supervision of a dentist or pursuant to a written collaborative practice agreement, a licensed dental therapist may do any of the following:

1. Perform oral evaluations and assessments of dental disease and formulate individualized treatment plans.

2. Perform comprehensive charting of the oral cavity.

3. Provide oral health instruction and disease prevention education, including motivational interviewing, nutritional counseling and dietary analysis.

4. Expose and process dental radiographic images.

5. Perform dental prophylaxis, scaling, root planing and polishing procedures.

6. Dispense and administer oral and topical nonnarcotic analgesics and anti-inflammatory and antibiotic medications as prescribed by a licensed health care provider.

7. Apply topical preventive and prophylactic agents, including fluoride varnishes, antimicrobial agents, silver diamine fluoride and pit and fissure sealants.

8. Perform pulp vitality testing.

9. Apply desensitizing medicaments or resins.

10. Fabricate athletic mouth guards and soft occlusal guards.

11. Change periodontal dressings.

12. Administer nitrous oxide analgesics and local anesthetics.

13. Perform simple extraction of erupted primary teeth.

14. Perform nonsurgical extractions of periodontally diseased permanent teeth that exhibit plus three or grade three mobility and that are not impacted, fractured, unerupted or in need of sectioning for removal.

15. Perform emergency palliative treatments of dental pain that is related to care or a service described in this section.

16. Prepare and place direct restorations in primary and permanent teeth.

17. Fabricate and place single-tooth temporary crowns.

18. Prepare and place preformed crowns on primary teeth.

19. Perform indirect and direct pulp capping on permanent teeth.

20. Perform indirect pulp capping on primary teeth.

21. Perform suturing and suture removal.

22. Provide minor adjustments and repairs on removable prostheses.

23. Place and remove space maintainers.

24. Perform all functions of a dental assistant and expanded function dental assistant.

25. Perform other related services and functions that are authorized by the supervising dentist within the dental therapist's scope of practice and for which the dental therapist is trained.

26. Provide referrals.

27. Perform any other duties of a dental therapist that are authorized by the board by rule.

C. A dental therapist may not:

1. Dispense or administer a narcotic drug.

2. Independently bill for services to any individual or third-party payor.

D. A person may not claim to be a dental therapist unless that person is licensed as a dental therapist under this article.

§ 32-1276.04 Dental therapists; clinical practice; supervising dentists; written collaborative practice agreements

A. A dental therapist may practice only in the following practice settings or locations, including mobile dental units, that are operated or served by any of the following:

1. A federally qualified community health center.

2. A health center program that has received a federal look-alike designation.

3. A community health center.

4. A nonprofit dental practice or a nonprofit organization that provides dental care to low-income and underserved individuals.

5. A private dental practice that provides dental care for community health center patients of record who are referred by the community health center.

B. A dental therapist may practice in this state either under the direct supervision of a dentist or pursuant to a written collaborative practice agreement. Before a dental therapist may enter into a written collaborative practice agreement, the dental therapist shall complete one thousand hours of dental therapy clinical practice under the direct supervision of a dentist who is licensed in this state and shall provide documentation satisfactory to the board of having completed this requirement.

C. A practicing dentist who holds an active license pursuant to this chapter and a licensed dental therapist who holds an active license pursuant to this article may enter into a written collaborative practice agreement for the delivery of dental therapy services. The supervising dentist shall provide or arrange for another dentist or specialist to provide any service needed by the dental therapist's patient that exceeds the dental therapist's authorized scope of practice.

D. A dentist may not enter into more than four separate written collaborative practice agreements for the delivery of dental therapy services.

E. A written collaborative practice agreement between a dentist and a dental therapist shall do all of the following:

1. Address any limit on services and procedures to be performed by the dental therapist, including types of populations and any age-specific or procedure-specific practice protocol, including case selection criteria, assessment guidelines and imaging frequency.

2. Address any limit on practice settings established by the supervising dentist and the level of supervision required for various services or treatment settings.

3. Establish practice protocols, including protocols for informed consent, recordkeeping, managing medical emergencies and providing care to patients with complex medical conditions, including requirements for consultation before initiating care.

4. Establish protocols for quality assurance, administering and dispensing medications and supervising dental assistants.

5. Include specific protocols to govern situations in which the dental therapist encounters a patient requiring treatment that exceeds the dental therapist's authorized scope of practice or the limits imposed by the collaborative practice agreement.

6. Specify that the extraction of permanent teeth may be performed only under the direct supervision of a dentist and consistent with section 32-1276.03, subsection B, paragraph 14.

F. Except as provided in section 32-1276.03, subsection B, paragraph 14, to the extent authorized by the supervising dentist in the written collaborative practice agreement, a dental therapist may practice dental therapy procedures authorized under this article in a practice setting in which the supervising dentist is not on-site and has not previously examined the patient or rendered a diagnosis.

G. The written collaborative practice agreement must be signed and maintained by both the supervising dentist and the dental therapist and may be updated and amended as necessary by both the supervising dentist and dental therapist. The supervising dentist and dental therapist shall submit a copy of the agreement and any amendment to the agreement to the board.

§ 32-1276.05 Dental therapists; supervising dentists; collaborative practice relationships

A. A dentist who holds an active license pursuant to this chapter and a dental therapist who holds an active license pursuant to this article may enter into a collaborative practice relationship through a written collaborative practice agreement for the delivery of dental therapy services.

B. Each dental practice shall disclose to a patient whether the patient is scheduled to see the dentist or dental therapist.

C. Each dentist in a collaborative practice relationship shall:

1. Be available to provide appropriate contact, communication and consultation with the dental therapist.

2. Adopt procedures to provide timely referral of patients whom the dental therapist refers to a licensed dentist for examination. The dentist to whom the patient is referred shall be geographically available to see the patient.

D. Each dental therapist in a collaborative practice relationship shall:

1. Perform only those duties within the terms of the written collaborative practice agreement.

2. Maintain an appropriate level of contact with the supervising dentist.

E. The dental therapist and the supervising dentist shall notify the board of the beginning of the collaborative practice relationship and provide the board with a copy of the written collaborative practice agreement and any amendments to the agreement within thirty days after the effective date of the agreement or amendment. The dental therapist and supervising dentist shall also notify the board within thirty days after the termination date of the written collaborative practice agreement if the date is different than the termination date provided in the agreement.

F. Subject to the terms of the written collaborative practice agreement, a dental therapist may perform all dental therapy procedures authorized in section 32-1276.03. The dentist's presence, examination, diagnosis and treatment plan are not required unless specified by the written collaborative practice agreement.

§ 32-1276.06 Practicing without a license; violation; classification

It is a class 6 felony for a person to practice dental therapy in this state unless the person has obtained a license from the board as provided in this article.

§ 32-1276.07 Licensure by credential; examination waiver; fee

A. The board by rule may waive the examination requirements of this article on receipt of evidence satisfactory to the board that the applicant has passed the clinical examination of another state or testing agency more than five years before submitting the application for licensure pursuant to this article and the other state or testing agency maintains a standard of licensure or certification that is substantially equivalent to that of this state as determined by the board. The board by rule shall require:

1. A minimum number of active practice hours within a specific time period before the applicant submits the application. The board shall prescribe what constitutes active practice.

2. An affirmation that the applicant has completed the continuing education requirements of the jurisdiction where the applicant is licensed or certified.

B. The applicant shall pay a licensure by credential fee as established by the board in rule.

C. An applicant under this section is not required to obtain a dental hygienist license in this state if the board determines that the applicant otherwise meets the requirements for dental therapist licensure.

§ 32-1276.08 Dental therapy schools; credit for prior experience or coursework

Notwithstanding any other law, a recognized dental therapy school may grant advanced standing or credit for prior learning to a student who has prior experience or has completed coursework that the school determines is equivalent to didactic and clinical education in its accredited program.

Article 4 Licensing and Regulation of Dental Hygienists

§ 32-1281 Practicing as dental hygienist; supervision requirements; definitions

A. A person is deemed to be practicing as a dental hygienist if the person does any of the acts or performs any of the operations included in the general practice of dental hygienists, dental hygiene and all related and associated duties.

B. A licensed dental hygienist may perform the following:

1. Prophylaxis.

2. Scaling.

3. Closed subgingival curettage.

4. Root planing.

5. Administering local anesthetics and nitrous oxide.

6. Inspecting the oral cavity and surrounding structures for the purposes of gathering clinical data to facilitate a diagnosis.

7. Periodontal screening or assessment.

8. Recording clinical findings.

9. Compiling case histories.

10. Exposing and processing dental radiographs.

11. Dental hygiene assessment and dental hygiene treatment planning as components of a diagnosis and treatment plan developed by a dentist.

12. All functions authorized and deemed appropriate for dental assistants.

13. Except as provided in paragraph 14 of this subsection, those restorative functions permissible for an expanded function dental assistant if qualified pursuant to section 32-1291.01.

14. Placing interim therapeutic restorations after successfully completing a course at an institution accredited by the commission on dental accreditation of the American dental association.

C. The board by rule shall prescribe the circumstances under which a licensed dental hygienist may:

1. Apply preventive and therapeutic agents to the hard and soft tissues.

2. Use emerging scientific technology and prescribe the necessary training, experience and supervision to operate newly developed scientific technology. A dentist who supervises a dental hygienist whose duties include the use of emerging scientific technology must have training on using the emerging technology that is equal to or greater than the training the dental hygienist is required to obtain.

3. Perform other procedures not specifically authorized by this section.

D. Except as provided in subsections E, F and I of this section, a dental hygienist shall practice under the general supervision of a dentist who is licensed pursuant to this chapter.

E. A dental hygienist may practice under the general supervision of a physician who is licensed pursuant to chapter 13 or 17 of this title in an inpatient hospital setting.

F. A dental hygienist may perform the following procedures on meeting the following criteria and under the following conditions:

1. Administering local anesthetics under the direct supervision of a dentist who is licensed pursuant to this chapter after:

(a) The dental hygienist successfully completes a course in administering local anesthetics that includes didactic and clinical components in both block and infiltration techniques offered by a dental or dental hygiene program accredited by the commission on dental accreditation of the American dental association.

(b) The dental hygienist successfully completes an examination in local anesthesia given by a state or regional testing agency in the United States.

(c) The board issues to the dental hygienist a local anesthesia certificate on receipt of proof that the requirements of subdivisions (a) and (b) of this paragraph have been met.

2. Administering local anesthetics under general supervision to a patient of record if all of the following are true:

(a) The dental hygienist holds a local anesthesia certificate issued by the board.

(b) The patient is at least eighteen years of age.

(c) The patient has been examined by a dentist who is licensed pursuant to this chapter within the previous twelve months.

(d) There has been no change in the patient's medical history since the last examination. If there has been a change in the patient's medical history within that time, the dental hygienist must consult with the dentist before administering local anesthetics.

(e) The supervising dentist who performed the examination has approved the patient for being administered local anesthetics by the dental hygienist under general supervision and has documented this approval in the patient's record.

3. Administering nitrous oxide analgesia under the direct supervision of a dentist who is licensed pursuant to this chapter after:

(a) The dental hygienist successfully completes a course in administering nitrous oxide analgesia that includes didactic and clinical components offered by a dental or dental hygiene program accredited by the commission on dental accreditation of the American dental association.

(b) The board issues to the dental hygienist a nitrous oxide analgesia certificate on receipt of proof that the requirements of subdivision (a) of this paragraph have been met.

G. The board may issue local anesthesia and nitrous oxide analgesia certificates to a licensed dental hygienist on receipt of evidence satisfactory to the board that the dental hygienist holds a valid certificate or credential in good standing in the respective procedure issued by a licensing board of another jurisdiction of the United States.

H. A dental hygienist may perform dental hygiene procedures in the following settings:

1. On a patient of record of a dentist within that dentist's office.

2. Except as prescribed in section 32-1289.01, in a health care facility, long-term care facility, public health agency or institution, public or private school or homebound setting on patients who have been examined by a dentist within the previous year.

3. In an inpatient hospital setting pursuant to subsection E of this section.

I. A dental hygienist may provide dental hygiene services under an affiliated practice relationship with a dentist as prescribed in section 32-1289.01.

J. For the purposes of this article:

1. "Assessment" means a limited, clinical inspection that is performed to identify possible signs of oral or systemic disease, malformation or injury and the potential need for referral for diagnosis and treatment, and may include collecting clinical information to facilitate an examination, diagnosis and treatment plan by a dentist.

2. "Dental hygiene assessment" means the identification of an existing or potential oral health problem that dental hygienists are educationally qualified and licensed to treat.

3. "Dental hygiene treatment planning" means performing a prioritized sequence of dental hygiene interventions that is predicated on the dental hygiene assessment and that is limited to those services included in the scope of practice for dental hygienists.

4. "Direct supervision" means that the dentist is present in the office while the dental hygienist is treating a patient and is available for consultation regarding procedures that the dentist authorizes and for which the dentist is responsible.

5. "General supervision" means:

(a) That the dentist is available for consultation, whether or not the dentist is in the dentist's office, over procedures that the dentist has authorized and for which the dentist remains responsible.

(b) With respect to an inpatient hospital setting, that a physician who is licensed pursuant to chapter 13 or 17 of this title is available for consultation, whether or not the physician is physically present at the hospital.

6. "Interim therapeutic restoration" means a provisional restoration that is placed to stabilize a primary or permanent tooth and that consists of removing soft material from the tooth using only hand instrumentation, without using rotary instrumentation, and subsequently placing an adhesive restorative material.

7. "Screening" means determining an individual's need to be seen by a dentist for diagnosis and does not include an examination, diagnosis or treatment planning.

§ 32-1282 Administration and enforcement

A. So far as applicable, the board shall have the same powers and duties in administering and enforcing this article that it has under section 32-1207 in administering and enforcing articles 1, 2 and 3 of this chapter.

B. The board shall adopt rules that provide a method for the board to receive the assistance and advice of dental hygienists licensed pursuant to this chapter in all matters relating to the regulation of dental hygienists.

§ 32-1283 Disposition of revenues

The provisions of section 32-1212 shall apply to all fees, fines and other revenues received by the board under this article.

§ 32-1284 Qualifications of applicant; application; fee; fingerprint clearance card; rules; denial or suspension of application

A. An applicant for licensure as a dental hygienist shall be at least eighteen years of age, shall meet the requirements of section 32-1285 and shall present to the board evidence of graduation or a certificate of satisfactory completion in a course or curriculum in dental hygiene from a recognized dental hygiene school. A candidate shall make written application to the board accompanied by a nonrefundable Arizona dental jurisprudence examination fee of $100. The board shall waive this fee for candidates who are holders of valid restricted permits. Each candidate shall also obtain a valid fingerprint clearance card issued pursuant to section 41-1758.03.

B. The board shall adopt rules that govern the practice of dental hygienists and that are not inconsistent with this chapter.

C. The board may deny an application for licensure or an application for license renewal if the applicant:

1. Has committed an act that would be cause for censure, probation or suspension or revocation of a license under this chapter.

2. While unlicensed, committed or aided and abetted the commission of an act for which a license is required by this chapter.

3. Knowingly made any false statement in the application.

4. Has had a license to practice dental hygiene revoked by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

5. Is currently under suspension or restriction by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

6. Has surrendered, relinquished or given up a license to practice dental hygiene instead of disciplinary action by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

D. The board shall suspend an application for a license if the applicant is currently under investigation by a dental regulatory board in another jurisdiction. The board shall not issue or deny a license to the applicant until the investigation is resolved.

§ 32-1285 Applicants for licensure; examination requirements

An applicant for licensure shall have passed all of the following:

1. The national dental hygiene board examination.

2. A clinical examination administered by a state or regional testing agency in the United States within five years preceding filing the application.

3. The Arizona dental jurisprudence examination.

§ 32-1286 Recognized dental hygiene schools; credit for prior learning

Notwithstanding any law to the contrary, a recognized dental hygiene school may grant advanced standing or credit for prior learning to a student who has prior experience or course work that the school determines is equivalent to didactic and clinical education in its accredited program.

§ 32-1287 Dental hygienist triennial licensure; continuing education; license reinstatement; notice of change of address; penalties; retired and disabled license status

A. Except as provided in section 32-4301, a license expires thirty days after the licensee's birth month every third year. On or before the last day of the licensee's birth month every third year, every licensed dental hygienist shall submit to the board a complete renewal application and pay a license renewal fee of not more than $325, established by a formal vote of the board. At least once every three years, before establishing the fee, the board shall review the amount of the fee in a public meeting. Any change in the amount of the fee shall be applied prospectively to a licensee at the time of licensure renewal. The fee prescribed by this section does not apply to a retired hygienist or a hygienist with a disability.

B. A licensee shall include a written affidavit with the renewal application that affirms that the licensee complies with board rules relating to continuing education requirements. A licensee is not required to complete the written affidavit if the licensee received an initial license within the year immediately preceding the expiration date of the license or the licensee is in disabled status. If the licensee is not in compliance with board rules relating to continuing education, the board may grant an extension of time to complete these requirements if the licensee includes a written request for an extension with the renewal application instead of the written affidavit and the renewal application is received on or before the last day of the licensee's birth month of the expiration year. The board shall consider the extension request based on criteria prescribed by the board by rule. If the board denies an extension request, the license expires thirty days after the licensee's birth month of the expiration year.

C. A person applying for a license for the first time in this state shall pay a prorated fee for the period remaining until the licensee's next birth month. This fee shall not exceed one-third of the fee established pursuant to subsection A of this section. Subsequent registrations shall be conducted pursuant to this section.

D. An expired license may be reinstated by submitting a complete renewal application within the twenty-four-month period immediately following the expiration of the license with payment of the renewal fee and a $100 penalty. Whenever issued, reinstatement is as of the date of application and entitles the applicant to licensure only for the remainder of the applicable three-year period. If a person does not reinstate a license pursuant to this subsection, the person must reapply for licensure pursuant to this chapter.

E. A licensee shall notify the board in writing within ten days after the licensee changes the primary mailing address listed with the board. The board shall impose a penalty of $50 if a licensee fails to notify the board of the change within that time. The board shall increase the penalty imposed to $100 if a licensee fails to notify it of the change within thirty days.

F. A licensee who is over sixty-five years of age and who is fully retired and a licensee who has a permanent disability may contribute services to a recognized charitable institution and still retain that classification for triennial registration purposes on payment of a reduced renewal fee as prescribed by the board by rule.

§ 32-1288 Practicing without license; classification

It is a class 1 misdemeanor for a person to practice dental hygiene in this state unless the person has obtained a license from the board as provided in this article.

§ 32-1289 Employment of dental hygienist by public agency, institution or school

A. A public health agency or institution or a public or private school authority may employ dental hygienists to perform necessary dental hygiene procedures under either direct or general supervision pursuant to section 32-1281.

B. A dental hygienist employed by or working under contract or as a volunteer for a public health agency or institution or a public or private school authority before an examination by a dentist may perform a screening or assessment and apply sealants and topical fluoride.

§ 32-1289.01 Dental hygienists; affiliated practice relationships; rules; definition

A. A dentist who holds an active license pursuant to this chapter and a dental hygienist who holds an active license pursuant to this article may enter into an affiliated practice relationship to deliver dental hygiene services.

B. A dental hygienist shall satisfy all of the following to be eligible to enter into an affiliated practice relationship with a dentist pursuant to this section to deliver dental hygiene services in an affiliated practice relationship:

1. Hold an active license in good standing pursuant to this article.

2. Enter into an affiliated practice relationship with a dentist who holds an active license pursuant to this chapter.

3. Be actively engaged in dental hygiene practice for at least five hundred hours in each of the two years immediately preceding the affiliated practice relationship.

C. An affiliated practice agreement between a dental hygienist and a dentist shall be in writing and:

1. Shall identify at least the following:

(a) The affiliated practice settings in which the dental hygienist may deliver services pursuant to the affiliated practice relationship.

(b) The services to be provided and any procedures and standing orders the dental hygienist must follow. The standing orders shall include the circumstances in which a patient may be seen by the dental hygienist.

(c) The conditions under which the dental hygienist may administer local anesthesia and provide root planing.

(d) Circumstances under which the affiliated practice dental hygienist must consult with the affiliated practice dentist before initiating further treatment on patients who have not been seen by a dentist within twelve months after the initial treatment by the affiliated practice dental hygienist.

2. May include protocols for supervising dental assistants.

D. The following requirements apply to all dental hygiene services provided through an affiliated practice relationship:

1. Patients who have been assessed by the affiliated practice dental hygienist shall be directed to the affiliated practice dentist for diagnosis, treatment or planning that is outside the dental hygienist's scope of practice, and the affiliated practice dentist may make any necessary referrals to other dentists.

2. The affiliated practice dental hygienist shall consult with the affiliated practice dentist if the proposed treatment is outside the scope of the agreement.

3. The affiliated practice dental hygienist shall consult with the affiliated practice dentist before initiating treatment on patients presenting with a complex medical history or medication regimen.

4. The patient shall be informed in writing that the dental hygienist providing the care is a licensed dental hygienist and that the care does not take the place of a diagnosis or treatment plan by a dentist.

E. A contract for dental hygiene services with licensees who have entered into an affiliated practice relationship pursuant to this section may be entered into only by:

1. A health care organization or facility.

2. A long-term care facility.

3. A public health agency or institution.

4. A public or private school authority.

5. A government-sponsored program.

6. A private nonprofit or charitable organization.

7. A social service organization or program.

F. An affiliated practice dental hygienist may not provide dental hygiene services in a setting that is not listed in subsection E of this section.

G. Each dentist in an affiliated practice relationship shall:

1. Be available to provide an appropriate level of contact, communication and consultation with the affiliated practice dental hygienist during the business hours of the affiliated practice dental hygienist.

2. Adopt standing orders applicable to dental hygiene procedures that may be performed and populations that may be treated by the affiliated practice dental hygienist under the terms of the applicable affiliated practice agreement and to be followed by the affiliated practice dental hygienist in each affiliated practice setting in which the affiliated practice dental hygienist performs dental hygiene services under the affiliated practice relationship.

3. Adopt procedures to provide timely referral of patients referred by the affiliated practice dental hygienist to a licensed dentist for examination and treatment planning. If the examination and treatment planning is to be provided by the dentist, that treatment shall be scheduled in an appropriate time frame. The affiliated practice dentist or the dentist to whom the patient is referred shall be geographically available to see the patient.

4. Not permit the provision of dental hygiene services by more than six affiliated practice dental hygienists at any one time.

H. Each affiliated practice dental hygienist, when practicing under an affiliated practice relationship:

1. May perform only those duties within the terms of the affiliated practice relationship.

2. Shall maintain an appropriate level of contact, communication and consultation with the affiliated practice dentist.

3. Is responsible and liable for all services rendered by the affiliated practice dental hygienist under the affiliated practice relationship.

I. The affiliated practice dental hygienist and the affiliated practice dentist shall notify the board of the beginning of the affiliated practice relationship and provide the board with a copy of the agreement and any amendments to the agreement within thirty days after the effective date of the agreement or amendment. The affiliated practice dental hygienist and the affiliated practice dentist shall also notify the board within thirty days after the termination date of the affiliated practice relationship if this date is different than the agreement termination date.

J. Subject to the terms of the written affiliated practice agreement entered into between a dentist and a dental hygienist, a dental hygienist may:

1. Perform all dental hygiene procedures authorized by this chapter, except for performing any diagnostic procedures that are required to be performed by a dentist and administering nitrous oxide. The dentist's presence and an examination, diagnosis and treatment plan are not required unless specified by the affiliated practice agreement.

2. Supervise dental assistants, including dental assistants who are certified to perform functions pursuant to section 32-1291.

K. The board shall adopt rules regarding participation in affiliated practice relationships by dentists and dental hygienists that specify the following:

1. Additional continuing education requirements that must be satisfied by a dental hygienist.

2. Additional standards and conditions that may apply to affiliated practice relationships.

3. Compliance with the dental practice act and rules adopted by the board.

L. For the purposes of this section, "affiliated practice relationship" means the delivery of dental hygiene services, pursuant to an agreement, by a dental hygienist who is licensed pursuant to this article and who refers the patient to a dentist who is licensed pursuant to this chapter for any necessary further diagnosis, treatment and restorative care.

§ 32-1290 Grounds for censure, probation, suspension or revocation of license; procedure

After a hearing pursuant to title 41, chapter 6, article 10, the board may suspend or revoke the license issued to a person under this article or censure or place on probation any such person for any of the causes set forth as grounds for censure, probation, suspension or revocation in section 32-1263.

§ 32-1291 Dental assistants; regulation; duties

A. A dental assistant may expose radiographs for dental diagnostic purposes under either the general supervision of a dentist or the direct supervision of an affiliated practice dental hygienist licensed pursuant to this chapter if the assistant has passed an examination approved by the board.

B. A dental assistant may polish the natural and restored surfaces of the teeth under either the general supervision of a dentist or the direct supervision of an affiliated practice dental hygienist licensed pursuant to this chapter if the assistant has passed an examination approved by the board.

§ 32-1291.01 Expanded function dental assistants; training and examination requirements; duties

A. A dental assistant may perform expanded functions after meeting one of the following:

1. Successfully completing a board-approved expanded function dental assistant training program at an institution accredited by the American dental association commission on dental accreditation and on successfully completing examinations in dental assistant expanded functions approved by the board.

2. Providing both:

(a) Evidence of currently holding or having held within the preceding ten years a license, registration, permit or certificate in expanded functions in restorative procedures issued by another state or jurisdiction in the United States.

(b) Proof acceptable to the board of clinical experience in the expanded functions listed in subsection B of this section.

B. Expanded functions include the placement, contouring and finishing of direct restorations or the placement and cementation of prefabricated crowns following the preparation of the tooth by a licensed dentist. The restorative materials used shall be determined by the dentist.

C. An expanded function dental assistant may place interim therapeutic restorations under the general supervision and direction of a licensed dentist following a consultation conducted through teledentistry.

D. An expanded function dental assistant may apply sealants and fluoride varnish under the general supervision and direction of a licensed dentist.

E. A licensed dental hygienist may engage in expanded functions pursuant to section 32-1281, subsection B, paragraph 13 following a course of study and examination equivalent to that required for an expanded function dental assistant as specified by the board.

§ 32-1291.02 Oral preventive assistants; qualifications; scope of practice; supervision; definition

A. In order to practice as an oral preventive assistant, a dental assistant shall complete a board-approved oral preventive assistant training course that includes at least one hundred twenty hours of didactic and clinical instruction with patients and that is provided by a qualifying institution. Before taking an oral preventive assistant training course, a dental assistant must meet all of the following:

1. Hold a current certification in cardiopulmonary resuscitation.

2. Hold a board-approved certification for both coronal polishing and radiography.

3. Either:

(a) Hold a current national board certification in dental assisting.

(b) Have successfully completed a dental assisting educational program accredited by a state or national organization that accredits dental programs.

B. The scope of practice for an oral preventive assistant is limited to removing plaque, calculus and stains, with scalers or sonic or ultrasonic scaling devices, on patients who have first received a periodontal evaluation by a dentist or dental hygienist. An oral preventive assistant may practice only on periodontally healthy patients or patients with localized mild gingivitis. An oral preventive assistant may not use any air polishing technology or device or practice on patients who have been treated for periodontal disease, have generalized recession, are medically compromised or are under sedation.

C. An oral preventive assistant who provides coronal calculus removal services pursuant to this section shall both:

1. Inform each patient and document in the patient's clinical record that the patient's care was not provided by a licensed dental provider.

2. Prominently post the oral preventive assistant's certificate of completion of an approved course of instruction at the location where the coronal calculus removal services are performed.

D. An oral preventive assistant may practice in this state only under the direct supervision of a dentist or dental hygienist. A dentist may supervise not more than three oral preventive assistants at the same time. A dental hygienist may supervise not more than one oral preventive assistant at any time. A dentist or dental hygienist who allows an oral preventive assistant to perform coronal calculus removal services in violation of this section commits an act of unprofessional conduct.

E. For the purposes of this section, "qualifying institution" means an institution of higher education, including a community college, that provides a dental or dental hygiene program that is accredited by the commission on dental accreditation, or its successor.

§ 32-1292 Restricted permits; suspension; expiration; renewal

A. The board may issue a restricted permit to practice dental hygiene to an applicant who:

1. Has a pending contract with a recognized charitable dental clinic or organization that offers dental hygiene services without compensation or at a rate that reimburses the clinic only for dental supplies and overhead costs and the applicant will not receive compensation for dental hygiene services provided at the clinic or organization.

2. Has a license to practice dental hygiene issued by a regulatory jurisdiction in the United States.

3. Has been actively engaged in the practice of dental hygiene for three years immediately preceding the application.

4. Is, to the board's satisfaction, competent to practice dental hygiene.

5. Meets the requirements of section 32-1284, subsection A that do not relate to examination.

B. A person who holds a restricted permit issued by the board may practice dental hygiene only in the course of the person's employment by a recognized charitable dental clinic or organization approved by the board.

C. The applicant for a restricted permit must file a copy of the person's employment contract with the board that includes a statement signed by the applicant that the applicant:

1. Understands that if that person's employment is terminated before the restricted permit expires, the permit is automatically revoked and that person must voluntarily surrender the permit to the board and is no longer eligible to practice unless that person meets the requirements of sections 32-1284 and 32-1285 or passes the examination required in this article.

2. Must be employed without compensation by a dental clinic or organization that is operated for a charitable purpose.

3. Is subject to the provisions of this chapter that apply to the regulation of dental hygienists.

D. The board may deny an application for a restricted permit if the applicant:

1. Has committed an act that is a cause for disciplinary action pursuant to this chapter.

2. While unlicensed, committed or aided and abetted the commission of any act for which a license is required pursuant to this chapter.

3. Knowingly made a false statement in the application.

4. Has had a license to practice dental hygiene revoked by a dental regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

5. Is currently under suspension or restriction by a dental regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

6. Has surrendered, relinquished or given up a license to practice dental hygiene instead of disciplinary action by a dental regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

E. The board shall suspend an application for a restricted permit or an application for restricted permit renewal if the applicant is currently under investigation by a dental regulatory board in another jurisdiction. The board shall not issue or deny a restricted permit to the applicant until the investigation is resolved.

F. A restricted permit expires either one year after the date of issue or June 30, whichever date first occurs. The board may renew a restricted permit for terms that do not exceed one year.

§ 32-1292.01 Licensure by credential; examinations; waiver; fee

A. The board by rule may waive the examination requirements of this article on receipt of evidence satisfactory to the board that the applicant has passed the clinical examination of another state or testing agency more than five years before submitting an application for licensure pursuant to this chapter and the other state or testing agency maintains a standard of licensure that is substantially equivalent to that of this state as determined by the board. The board by rule shall require:

1. A minimum number of active practice hours within a specific time period before the applicant submits the application. The board shall define what constitutes active practice.

2. An affirmation that the applicant has completed the continuing education requirements of the jurisdiction where the applicant is licensed.

B. The applicant shall pay a licensure by credential fee of not more than one thousand dollars as prescribed by the board.

Article 5 Certification and Regulation of Denturists

§ 32-1293 Practicing as denturist; denture technology; dental laboratory technician

A. Notwithstanding the provisions of section 32-1202, nothing in this chapter shall be construed to prohibit a denturist certified pursuant to the provisions of this article from practicing denture technology.

B. A person is deemed to be practicing denture technology who:

1. Takes impressions and bite registrations for the purpose of or with a view to the making, producing, reproducing, construction, finishing, supplying, altering or repairing of complete upper or lower prosthetic dentures, or both, or removable partial dentures for the replacement of missing teeth.

2. Fits or advertises, offers, agrees, or attempts to fit any complete upper or lower prosthetic denture, or both, or adjusts or alters the fit of any full prosthetic denture, or fits or adjusts or alters the fit of removable partial dentures for the replacement of missing teeth.

C. In addition to the practices described in subsection B of this section, a person certified to practice denture technology may also construct, repair, reline, reproduce or duplicate full or partial prosthetic dentures or otherwise engage in the activities of a dental laboratory technician.

D. No person may perform an act described in subsection B of this section except a licensed dentist, a holder of a restricted permit pursuant to section 32-1238, a certified denturist or auxiliary personnel authorized to perform any such act by rule or regulation of the board pursuant to section 32-1207, subsection A, paragraph 1.

§ 32-1294 Supervision by dentist; definitions; mouth preparation by dentist; liability; business association

A. A denturist may practice only in the office of a licensed dentist, denominated as such.

B. All work by a denturist shall be performed under the general supervision of a licensed dentist. For the purposes of this section, "general supervision" means the dentist is available for consultation in person or by phone during the performance of the procedures by a denturist pursuant to section 32-1293, subsection B. The dentist shall examine the patient initially, check the completed denture as to fit, form and function and perform such other procedures as the board may specify by rule or regulation. For the purposes of this section "completed denture" means a relined, rebased, duplicated or repaired denture or a new denture. Both the dentist and the denturist shall certify that the dentist has performed the initial examination and the final fitting as required in this subsection, and retain the certification in the patient's file.

C. When taking impressions or bite registrations for the purpose of constructing removable partial dentures or when checking the fit of a partial denture, all mouth preparation must be done by the dentist. The denturist is specifically prohibited from performing any cutting or surgery on hard or soft tissue in the mouth. By rule and regulation the board may further regulate the practice of the denturist in regard to removable partial dentures.

D. No more than two denturists may perform their professional duties under a dentist's general supervision at any one time.

E. A licensed dentist supervising a denturist shall be personally liable for any consequences arising from the performance of the denturist's duties.

F. A certified denturist and the dentist supervising his work may make any lawful agreement between themselves regarding fees, compensation and business association.

G. Any sign, advertisement or other notice displaying the name of the office must include the name of the responsible dentist.

§ 32-1295 Board of dental examiners; additional powers and duties

A. In addition to other powers and duties prescribed by this chapter, the board shall:

1. As far as applicable, exercise the same powers and duties in administering and enforcing this article as it exercises under section 32-1207 in administering and enforcing other articles of this chapter.

2. Determine the eligibility of applicants for certification and issue certificates to applicants who it determines are qualified for certification.

3. Investigate charges of misconduct on the part of certified denturists.

4. Issue decrees of censure, fix periods and terms of probation, suspend or revoke certificates as the facts may warrant and reinstate certificates in proper cases.

B. The board may:

1. Adopt rules prescribing requirements for continuing education for renewal of all certificates issued pursuant to this article.

2. Hire consultants to assist the board in the performance of its duties.

C. In all matters relating to discipline and certifying of denturists and the approval of examinations, the board, by rule, shall provide for receiving the assistance and advice of denturists who have been previously certified pursuant to this chapter.

§ 32-1296 Qualifications of applicant

A. To be eligible for certification to practice denture technology an applicant shall:

1. Hold a high school diploma or its equivalent.

2. Present to the board evidence of graduation from a recognized denturist school or a certificate of satisfactory completion of a course or curriculum in denture technology from a recognized denturist school.

3. Pass a board-approved examination.

B. A candidate for certification shall submit a written application to the board that includes a nonrefundable Arizona dental jurisprudence examination fee as prescribed by the board.

§ 32-1297.01 Application for certification; fingerprint clearance card; denial; suspension

A. Each applicant for certification shall submit a written application to the board accompanied by a nonrefundable jurisprudence examination fee and obtain a valid fingerprint clearance card issued pursuant to section 41-1758.03.

B. The board may deny an application for certification or for certification renewal if the applicant:

1. Has committed any act that would be cause for censure, probation, suspension or revocation of a certificate under this chapter.

2. Has knowingly made any false statement in the application.

3. While uncertified, has committed or aided and abetted the commission of any act for which a certificate is required under this chapter.

4. Has had a certificate to practice denture technology revoked by a regulatory board in another jurisdiction in the United States or Canada for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

5. Is currently under investigation, suspension or restriction by a regulatory board in another jurisdiction in the United States or Canada for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

6. Has surrendered, relinquished or given up a certificate to practice denture technology in lieu of disciplinary action by a regulatory board in another jurisdiction in the United States or Canada for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

C. The board shall suspend an application for certification if the applicant is currently under investigation by a denturist regulatory board in another jurisdiction. The board shall not issue or deny certification to the applicant until the investigation is resolved.

§ 32-1297.03 Qualification for reexamination

An applicant for examination who has previously failed two or more examinations, as a condition of eligibility to take any further examination, shall furnish to the board satisfactory evidence of having successfully completed additional training in a recognized denturist school or refresher courses approved by the board or the board's testing agency.

§ 32-1297.04 Fees

The board shall establish and collect fees, not to exceed the following amounts:

1. For an examination in jurisprudence, two hundred fifty dollars.

2. For each replacement or duplicate certificate, twenty-five dollars.

§ 32-1297.05 Disposition of revenues

The provisions of section 32-1212 shall apply to all fees, penalties and other revenues received by the board under this article.

§ 32-1297.06 Denturist certification; continuing education; certificate reinstatement; certificate for each place of practice; notice of change of address or place of practice; penalties

A. Except as provided in section 32-4301, a certification expires thirty days after the certificate holder's birth month every third year. On or before the last day of the certificate holder's birth month every third year, every certified denturist shall submit to the board a complete renewal application and shall pay a certificate renewal fee of not more than $300, established by a formal vote of the board. At least once every three years, before establishing the fee, the board shall review the amount of the fee in a public meeting. Any change in the amount of the fee shall be applied prospectively to a certificate holder at the time of certification renewal. This requirement does not apply to a retired denturist or to a denturist with a disability.

B. A certificate holder shall include a written affidavit with the renewal application that affirms that the certificate holder complies with board rules relating to continuing education requirements. A certificate holder is not required to complete the written affidavit if the certificate holder received an initial certification within the year immediately preceding the expiration date of the certificate or the certificate holder is in disabled status. If the certificate holder is not in compliance with board rules relating to continuing education, the board may grant an extension of time to complete these requirements if the certificate holder includes a written request for an extension with the renewal application instead of the written affidavit and the renewal application is received on or before the last day of the certificate holder's birth month of the expiration year. The board shall consider the extension request based on criteria prescribed by the board by rule. If the board denies an extension request, the certificate expires thirty days after the certificate holder's birth month of the expiration year.

C. A person applying for a certificate for the first time in this state shall pay a prorated fee for the period remaining until the certificate holder's next birth month. This fee shall not exceed one-third of the fee established pursuant to subsection A of this section. Subsequent certifications shall be conducted pursuant to this section.

D. An expired certificate may be reinstated by submitting a complete renewal application within the twenty-four-month period immediately following the expiration of the certificate with payment of the renewal fee and a $100 penalty. Whenever issued, reinstatement is as of the date of application and entitles the applicant to certification only for the remainder of the applicable three-year period. If a person does not reinstate a certificate pursuant to this subsection, the person must reapply for certification pursuant to this chapter.

E. Each certificate holder must provide to the board in writing both of the following:

1. A primary mailing address.

2. The address for each place of practice.

F. A certificate holder maintaining more than one place of practice shall obtain from the board a duplicate certificate for each office. The board shall set and charge a fee for each duplicate certificate. A certificate holder shall notify the board in writing within ten days after opening an additional place of practice.

G. A certificate holder shall notify the board in writing within ten days after changing a primary mailing address or place of practice address listed with the board. The board shall impose a $50 penalty if a certificate holder fails to notify the board of the change within that time. The board shall increase the penalty imposed to $100 if a certificate holder fails to notify it of the change within thirty days.

§ 32-1297.07 Discipline; procedure

A. After a hearing pursuant to title 41, chapter 6, article 10, the board may suspend or revoke the license issued to a person under this article or censure or place on probation any person for any of the causes set forth as grounds for censure, probation, suspension or revocation in section 32-1263.

B. The board on its own motion may investigate any evidence which appears to show the existence of any of the causes set forth in section 32-1263. The board shall investigate the report under oath of any person which appears to show the existence of any of the causes set forth in section 32-1263. Any person reporting pursuant to this section who provides the information in good faith shall not be subject to liability for civil damages as a result.

C. Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-1297.08 Injunction

A. An injunction shall issue to enjoin the practice of denture technology by any of the following:

1. One neither certified to practice as a denturist nor licensed to practice as a dentist.

2. One certified as a denturist from practicing without proper supervision by a dentist as required by this article.

3. A denturist whose continued practice will or might cause irreparable damage to the public health and safety prior to the time proceedings pursuant to section 32-1297.07 could be instituted and completed.

B. A petition for injunction shall be filed by the board in the superior court for Maricopa county or in the county where the defendant resides or is found. Any citizen is also entitled to obtain injunctive relief in any court of competent jurisdiction because of the threat of injury to the public health and welfare.

C. Issuance of an injunction shall not relieve the respondent from being subject to any other proceedings provided for by law.

§ 32-1297.09 Violations; classification

A person is guilty of a class 2 misdemeanor who:

1. Not licensed as a dentist, practices denture technology without certification as provided by this article.

2. Exhibits or displays a certificate, diploma, degree or identification of another or a forged or fraudulent certificate, diploma, degree or identification with the intent that it be used as evidence of the right of such person to practice as a denturist in this state.

3. Fails to obey a summons or other order regularly and properly issued by the board.

4. Is a licensed dentist responsible for a denturist under this article who fails to personally supervise the work of the denturist.

Article 6 Dispensing of Drugs and Devices

§ 32-1298 Dispensing of drugs and devices; conditions; definition

A. A dentist may dispense drugs, except schedule II controlled substances that are opioids, and devices kept by the dentist if:

1. All drugs and devices are dispensed in packages labeled with the following information:

(a) The dispensing dentist's name, address and telephone number.

(b) The date the drug or device is dispensed.

(c) The patient's name.

(d) The name and strength of the drug or device, directions for its use and any cautionary statements required by law.

2. The dispensing dentist enters into the patient's dental record the name and strength of the drug or device dispensed, the date the drug or device is dispensed and the therapeutic reason.

3. The dispensing dentist keeps all drugs and devices in a locked cabinet or room, controls access to the cabinet or room by a written procedure and maintains an ongoing inventory of its contents.

B. Before dispensing a drug or device pursuant to this section, the patient shall be given a written prescription on which appears the following statement in bold type: "This prescription may be filled by the prescribing dentist or by a pharmacy of your choice."

C. A dentist shall dispense for profit only to the dentist's own patient and only for conditions being treated by that dentist. The dentist shall provide direct supervision of an attendant involved in the dispensing process. For the purposes of this subsection, "direct supervision" means that a dentist is present and makes the determination as to the legitimacy or advisability of the drugs or devices to be dispensed.

D. This section shall be enforced by the board, which shall establish rules regarding labeling, recordkeeping, storage and packaging of drugs and devices that are consistent with the requirements of chapter 18 of this title. The board may conduct periodic inspections of dispensing practices to ensure compliance with this section and applicable rules.

E. For the purposes of this section, "dispense" means the delivery by a dentist of a prescription drug or device to a patient, except for samples packaged for individual use by licensed manufacturers or repackagers of drugs or devices, and includes the prescribing, administering, packaging, labeling and security necessary to prepare and safeguard the drug or device for delivery.

Article 7 Rehabilitation

§ 32-1299 Substance abuse treatment and rehabilitation program; private contract; funding; confidential stipulation agreement

A. The board may establish a confidential program for the treatment and rehabilitation of dentists, dental therapists, denturists and dental hygienists who are impaired by alcohol or drug abuse. This program shall include education, intervention, therapeutic treatment and posttreatment monitoring and support.

B. The board may contract with other organizations to operate the program established pursuant to this section. A contract with a private organization shall include the following requirements:

1. Periodic reports to the board regarding treatment program activity.

2. Release to the board on demand of all treatment records.

3. Periodic reports to the board regarding each dentist's, dental therapist's, denturist's or dental hygienist's diagnosis and prognosis and recommendations for continuing care, treatment and supervision.

4. Immediate reporting to the board of the name of an impaired practitioner whom the treating organization believes to be a danger to self or others.

5. Immediate reporting to the board of the name of a practitioner who refuses to submit to treatment or whose impairment is not substantially alleviated through treatment.

C. The board may allocate an amount of not more than twenty dollars annually or sixty dollars triennially from each fee it collects from the renewal of active licenses for the operation of the program established by this section.

D. A dentist, dental therapist, denturist or hygienist who, in the opinion of the board, is impaired by alcohol or drug abuse shall agree to enter into a confidential nondisciplinary stipulation agreement with the board. The board shall place a licensee or certificate holder on probation if the licensee or certificate holder refuses to enter into a stipulation agreement with the board and may take other action as provided by law. The board may also refuse to issue a license or certificate to an applicant if the applicant refuses to enter into a stipulation agreement with the board.

E. In the case of a licensee or certificate holder who is impaired by alcohol or drug abuse after completing a second monitoring program pursuant to a stipulation agreement under subsection D of this section, the board shall determine whether:

1. To refer the matter for a formal hearing for the purpose of suspending or revoking the license or certificate.

2. The licensee or certificate holder should be placed on probation for a minimum of one year with restrictions necessary to ensure public safety.

3. To enter into another stipulation agreement under subsection D of this section with the licensee or certificate holder.

Article 8 Mobile Dental Facilities and Portable Dental Units

§ 32-1299.21 Definitions

In this article, unless the context otherwise requires:

1. "Mobile dental facility" means a facility in which dentistry is practiced and that is routinely towed, moved or transported from one location to another.

2. "Permit holder" means a dentist, dental hygienist, denturist or registered business entity that is authorized by this chapter to offer dental services in this state or a nonprofit organization, school district or school or institution of higher education that may employ a licensee to provide dental services and that is authorized by this article to operate a mobile dental facility or portable dental unit.

3. "Portable dental unit" means a nonfacility in which dental equipment used in the practice of dentistry is transported to and used on a temporary basis at an out-of-office location.

§ 32-1299.22 Mobile dental facilities; portable dental units; permits; exceptions

A. Beginning January 1, 2012, every mobile dental facility and, except as provided in subsection B, every provider, program or entity using portable dental units in this state must obtain a permit pursuant to this article.

B. A licensee who does not hold a permit for a mobile dental facility or portable dental unit may provide dental services if:

1. Occasional services are provided to a patient of record of a fixed dental office who is treated outside of the dental office.

2. Services are provided by a federal, state or local government agency.

3. Occasional services are performed outside of the licensee's office without charge to a patient or a third party.

4. Services are provided to a patient by an accredited dental or dental hygiene school.

5. The licensee holds a valid permit to provide mobile dental anesthesia services.

6. The licensee is an affiliated practice dental hygienist.

§ 32-1299.23 Permit application; fees; renewal; notification of changes

A. An individual or entity that seeks a permit to operate a mobile dental facility or portable dental unit must submit an application on a form provided by the board and pay an annual registration fee prescribed by the board by rule. The permit must be renewed annually not later than the last day of the month in which the permit was issued. Permits not renewed by the expiration date are subject to a late fee as prescribed by the board by rule.

B. A permit holder shall notify the board of any change in address or contact person within ten days after that change. The board shall impose a penalty as prescribed by the board by rule if the permit holder fails to notify the board of that change within that time.

C. If ownership of the mobile dental facility or portable dental unit changes, the prior permit is invalid and a new permit application must be submitted.

§ 32-1299.24 Standards of operation and practice

A. A permit holder must:

1. Comply with all applicable federal, state and local laws, regulations and ordinances dealing with radiographic equipment, flammability, sanitation, zoning and construction standards, including construction standards relating to required access for persons with disabilities.

2. Establish written protocols for follow-up care for patients who are treated in a mobile dental facility or through a portable dental unit. The protocols must include referrals for treatment in a dental office that is permanently established within a reasonable geographic area and may include follow-up care by the mobile dental facility or portable dental unit.

3. Ensure that each mobile dental facility or portable dental unit has access to communication equipment that will enable dental personnel to contact appropriate assistance in an emergency.

4. Identify a person who is licensed pursuant to this chapter, who is responsible to supervise treatment and who, if required by law, will be present when dental services are rendered. This paragraph does not prevent supervision by a dentist providing services or supervision pursuant to the exceptions prescribed in section 32-1231.

5. Display in or on the mobile dental facility or portable dental unit a current valid permit issued pursuant to this article in a manner that is readily observable by patients or visitors.

6. Provide a means of communication during and after business hours to enable the patient or the parent or guardian of a patient to contact the permit holder of the mobile dental facility or portable dental unit for emergency care, follow-up care or information about treatment received.

7. Comply with all requirements for maintenance of records pursuant to section 32-1264 and all other statutory requirements applicable to health care providers and patient records. All records, whether in paper or electronic form, if not in transit, must be maintained in a permanent, secure facility. Records of prior treatment must be readily available during subsequent treatment visits whenever practicable.

8. Ensure that all dentists, dental hygienists and denturists working in the mobile dental facility or portable dental unit hold a valid, current license issued by the board and that all delegated duties are within their respective scopes of practice as prescribed by the applicable laws of this state.

9. Maintain a written or electronic record detailing each location where services are provided, including:

(a) The street address of the service location.

(b) The dates of each session.

(c) The number of patients served.

(d) The types of dental services provided and the quantity of each service provided.

10. Provide to the board or its representative within ten days after a request for a record the written or electronic record required pursuant to paragraph 9 of this subsection.

11. Comply with current recommended infection control practices for dentistry as published by the national centers for disease control and prevention and as adopted by the board.

B. A mobile dental facility or portable dental unit must:

1. Contain equipment and supplies that are appropriate to the scope and level of treatment provided.

2. Have ready access to an adequate supply of potable water.

C. A permit holder or licensee who fails to comply with applicable statutes and rules governing the practice of dentistry, dental hygiene and denturism, the requirements for registered business entities or the requirements of this article is subject to disciplinary action for unethical or unprofessional conduct, as applicable.

§ 32-1299.25 Informed consent; information for patients

A. The permit holder of a mobile dental facility or portable dental unit must obtain appropriate informed consent, in writing or by verbal communication, that is recorded by an electronic or digital device from the patient or the parent or guardian of the patient authorizing specific treatment before it is performed. The signed consent form or verbal communication shall be maintained as part of the patient's record as required in section 32-1264.

B. If services are provided to a minor, the signed consent form or verbal communication must inform the parent or guardian that the treatment of the minor by the mobile dental facility or portable dental unit may affect future benefits the minor may receive under private insurance, the Arizona health care cost containment system or the children's health insurance program.

C. At the conclusion of each patient's visit, the permit holder of a mobile dental facility or portable dental unit shall provide each patient with an information sheet that must contain:

1. Pertinent contact information as required by this section.

2. The name of the dentist or dental hygienist, or both, who provided services.

3. A description of the treatment rendered, including billed service codes, fees associated with treatment and tooth numbers if appropriate.

4. If necessary, referral information to another dentist as required by this article.

D. If the patient or the minor patient's parent or guardian has provided written consent to an institutional facility to access the patient's dental health records, the permit holder shall provide the institution with a copy of the information sheet provided in subsection C.

§ 32-1299.26 Disciplinary actions; cessation of operation

A. A permit holder for a mobile dental facility or portable dental unit that provides dental services to a patient shall refer the patient for follow-up treatment with a licensed dentist or the permit holder if treatment is clinically indicated. A permit holder or licensee who fails to comply with this subsection commits an act of unprofessional conduct or unethical conduct and is subject to disciplinary action pursuant to section 32-1263, subsection A, paragraph 1 or subsection C.

B. The board may do any of the following pursuant to its disciplinary procedures if a mobile dental facility or portable dental unit violates any statute or board rule:

1. Refuse to issue a permit.

2. Suspend or revoke a permit.

3. Impose a civil penalty of not more than two thousand dollars for each violation.

C. If a mobile dental facility or portable dental unit ceases operations, the permit holder must notify the board within thirty days after the last day of operation and must report on the disposition of patient records and charts. In accordance with applicable laws and rules, the permit holder must also notify all active patients of the disposition of records and make reasonable arrangements for the transfer of patient records, including copies of radiographs, to a succeeding practitioner or, if requested, to the patient. For the purposes of this subsection, "active patient" means any person whom the permit holder has examined, treated, cared for or consulted with during the two year period before the discontinuation of practice.

Chapter 12 Funeral Industry Professionals

Article 1 Funeral Services

§ 32-1301 Definitions

In this chapter, unless the context otherwise requires:

1. "Accredited" means being recognized or authorized by the American board of funeral service education.

2. "Alkaline hydrolysis" means a form of final disposition that includes all of the following:

(a) Reducing a dead human body to essential elements through a water-based dissolution process using alkaline chemicals, heat, agitation and pressure to accelerate natural decomposition.

(b) Processing the hydrolyzed remains after they are removed from the alkaline hydrolysis vessel.

(c) Placing the processed remains in a hydrolyzed remains container.

(d) Releasing the hydrolyzed remains to an appropriate party.

3. "Alkaline hydrolysis container":

(a) Means a hydrolyzable or biodegradable closed container or pouch that is resistant to leakage of bodily fluids, that encases a dead human body and into which the body is placed before the container's insertion into an alkaline hydrolysis vessel.

(b) Includes a hydrolyzable or biodegradable alternative container or casket.

4. "Alkaline hydrolysis facility" means a building or structure containing one or more alkaline hydrolysis vessels for alkaline hydrolysis.

5. "Alkaline hydrolysis operator" means a person who is trained to carry out the process of alkaline hydrolysis.

6. "Alkaline hydrolysis vessel" means the container in which alkaline hydrolysis is performed.

7. "Alternative container" means any unfinished wood box or other nonmetal receptacle or enclosure, without ornamentation or a fixed interior lining, that is designed for encasing human remains.

8. "Authorizing agent" means a person who is legally entitled to order the cremation, disinterment, alkaline hydrolysis or embalming of human remains pursuant to section 32-1365.02.

9. "Beneficiary" means a person whose future funeral arrangements will be handled by a funeral establishment pursuant to a prearranged funeral agreement.

10. "Business entity" includes any corporation, association, limited liability company, professional corporation, partnership, limited partnership, sole proprietorship, business trust, trust, joint venture and other business entity.

11. "Casket" means a rigid container that is designed to permanently encase human remains and that is usually constructed of wood, metal or synthetic substances and ornamented and lined with fabric.

12. "Change of ownership" means a transfer of a controlling legal or equitable interest in a licensed funeral establishment or crematory resulting from a sale or merger. If the establishment or crematory is operated by a business entity, any transfer of the ownership of ten percent or more of the entity constitutes a change of ownership.

13. "Conviction" means a criminal adjudication or conviction by any state or federal court of competent jurisdiction, including a judgment based on a no contest plea, without regard to whether civil rights have been restored.

14. "Cremated remains" means the remaining bone fragments or soil after cremation.

15. "Cremation" means the process that reduces human remains to bone fragments or soil by combustion, evaporation or natural organic reduction.

16. "Cremation container" means a leak and spill resistant, rigid, combustible, closed receptacle into which human remains are placed before cremation.

17. "Cremationist" means a person who operates a crematory retort, who performs the actual cremation of human remains and who may be licensed pursuant to article 6 of this chapter.

18. "Crematory" means a building or portion of a building that is licensed pursuant to article 6 of this chapter and that houses a retort in which only human remains are cremated.

19. "Department" means the department of health services.

20. "Director" means the director of the department.

21. "Disciplinary action" means an action taken to revoke or suspend a license, to impose probationary requirements or civil penalties or to issue a letter of censure or reprimand to any person who is subject to this chapter and who violates any provision of this chapter or rules.

22. "Embalmer" means a person who is licensed pursuant to this chapter and who is engaged in embalming.

23. "Embalming" means the implementation of reconstructive procedures and the process of disinfecting and preserving a dead human body to retard organic decomposition by treating the body to reduce the presence and growth of organisms.

24. "Financial institution" means a bank, savings and loan association, trust company or credit union that is lawfully doing business in this state and that is not affiliated with a funeral establishment.

25. "Fixed price prearranged funeral agreement funded by trust" means any agreement or combination of agreements that establishes a fixed price for funeral goods and services, that requires a funeral establishment to provide those funeral goods and services at the price levels in effect at the time of the execution of the agreement and that requires the purchaser to convey all or a portion of the accrued interest to the funeral establishment at the time that the funeral goods and services are actually provided.

26. "Funded by insurance" means that monies for a prearranged funeral agreement are paid directly to an insurance company licensed pursuant to title 20 on behalf of the beneficiary of the agreement.

27. "Funeral directing" means arranging, directing or providing a service in the disposition of dead human bodies for compensation.

28. "Funeral director" means a person who is licensed pursuant to this chapter and who is engaged in funeral directing.

29. "Funeral establishment" means a business at a specific location that is licensed pursuant to this chapter and that is devoted to the care, storage or preparation for final disposition or transportation of dead human bodies.

30. "Funeral goods and services":

(a) Means any personal property or services that are typically sold or provided in connection with the final disposition of human remains, including caskets, alternative containers, outer burial containers, cremation containers, transportation containers, funeral clothing or accessories, monuments, grave markers, urns, embalming services, funeral directing services and similar funeral or burial items.

(b) Does not include:

(i) Goods and services sold by cemeteries.

(ii) Services provided pursuant to a transportation protection agreement.

31. "Holding facility" means a designated area for retaining human remains.

32. "Human remains" means a lifeless human body or parts of a human body that allow a reasonable inference that death occurred.

33. "License" means a written authorization that is issued by the department and that entitles a person to act as a funeral director, cremationist, alkaline hydrolysis operator or embalmer or to operate a funeral establishment, crematory or alkaline hydrolysis facility in this state.

34. "Licensee" means a person to whom the department has issued a license under this chapter.

35. "Manage" means:

(a) That a responsible funeral director exercises control and oversight over all employees of a funeral establishment and over funeral transactions, including caring for dead human bodies, funeral services and activities and documenting and retaining records.

(b) That a responsible cremationist exercises control and oversight over all employees of a crematory and crematory operations.

36. "National board examination" means the test or tests given by the international conference of funeral service examining boards to determine the entry level knowledge and skills of a person regarding funeral directing and embalming.

37. "Natural organic reduction" means the contained, accelerated conversion of human remains to soil.

38. "Net interest" means interest earned on a prearranged funeral trust account minus applicable taxes, reasonable and necessary charges made by the financial institution and the annual service fee allowed to be deducted by the funeral establishment according to section 32-1391.06, subsection B.

39. "Outer burial container" means a container that is designed for placement in a grave around a casket, including burial vaults, grave boxes and grave liners.

40. "Owner":

(a) Means a person who owns ten percent or more of a business entity.

(b) Does not include shareholders of companies who have a class of common equity stock listed or authorized to be listed on the New York stock exchange or the American stock exchange or listed on the NASDAQ stock market.

41. "Person legally responsible" means the person responsible for burying a dead body as determined in section 36-831.

42. "Prearranged funeral agreement" means any agreement or combination of agreements under which a payment is made before the death of the intended beneficiary for funeral goods and services to be delivered or performed after the death of the beneficiary.

43. "Prearranged funeral trust account" means a trust account that is established at a financial institution and into which all monies paid on behalf of a beneficiary pursuant to a prearranged funeral agreement are deposited.

44. "Preparation" means washing, shaving, dressing or arranging hair on, applying cosmetics to or positioning bodily features on a dead human body and placing the dead human body in a casket.

45. "Processed cremated remains" means cremated remains, including after they are pulverized and cleaned, leaving primarily small bone fragments or soil.

46. "Provisionally accredited" means being granted candidacy status by the American board of funeral service education.

47. "Responsible cremationist" means a licensed cremationist who manages a crematory.

48. "Responsible funeral director" means a person who is licensed pursuant to this chapter, who is engaged in funeral directing and who manages and is accountable for a funeral establishment.

49. "Retort" means an enclosed space within which cremation takes place.

50. "Supervise" or "supervision" means that a licensed embalmer has responsibility for and is within sight and sound of a person who is embalming a dead human body or assisting in embalming a dead human body.

51. "Temporary container" means a receptacle that is usually made of cardboard, rigid plastic or another similar material and that is designed to hold processed cremated remains until they are placed in an urn or another permanent container.

52. "Transportation protection agreement" means an agreement that primarily provides or arranges for services that are related to preparing human remains or cremated remains for the purpose of transportation and such subsequent transportation.

53. "Trust funds" means all monies that are deposited on behalf of a beneficiary of a prearranged funeral agreement funded by trust and all accrued net interest. Trust funds shall be considered an account kept in suspense until distributed to the beneficiary, the funeral establishment or the estate of the beneficiary in accordance with this article.

54. "Universal precautions" means the universal blood and fluid precautions recommended by the centers for disease control of the United States public health service to prevent the transmission of bloodborne and bodily fluid-borne infectious diseases.

55. "Unprofessional conduct" includes the following acts, whether occurring in this state or elsewhere:

(a) Committing a class 1 or 2 felony.

(b) Committing a felony or misdemeanor if the offense has a reasonable relationship to funeral directing or embalming. Conviction by any court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

(c) Providing false, misleading or deceptive information on an application for licensure pursuant to this chapter or on an examination required for licensure.

(d) Bribing or offering to bribe, directly or indirectly, an employee of the department to influence the employee's actions in performing the employee's duties.

(e) Wilfully interfering with an embalmer, funeral director, alkaline hydrolysis operator or cremationist who has lawful custody of a dead human body in performing the embalmer's, funeral director's, alkaline hydrolysis operator's or cremationist's duty to embalm or prepare the body for burial, transportation, alkaline hydrolysis or cremation.

(f) Paying or causing monies or other valuable consideration to be paid to a person, other than an employee of a funeral establishment, to secure business regulated pursuant to this chapter from or through the person.

(g) Violating any law of this state or any rule adopted by the department that relates to embalming or preparing dead human bodies.

(h) Certifying falsely to having embalmed or prepared a dead human body that was embalmed by another person.

(i) Falsely advertising or labeling any service or merchandise with the intention of deceiving the public.

(j) Shipping or delivering any merchandise or supplies that are not the substantial equivalent of or superior in quality to merchandise or supplies previously presented to the purchaser as samples.

(k) Committing any act involving dishonesty, fraud, misrepresentation, breach of fiduciary duty, gross negligence or incompetence if the act has a reasonable relationship to funeral directing or embalming.

(l) Engaging in any conduct or practice that is reasonably related to funeral directing or embalming and that is or may be harmful or dangerous to the health, safety or welfare of the public.

(m) Within a period of five years, having a license, registration or endorsement suspended or revoked by the department or by the funeral services regulating authority of this state or any other jurisdiction or surrendering a license, registration or endorsement in lieu of disciplinary action.

56. "Urn" means a receptacle into which processed cremated remains are placed for disposition.

§ 32-1302 Advisory committee; members; appointment; terms; compensation; meetings; duties

A. An advisory committee is established to collaborate with and advise the director about matters relating to the regulation of the funeral services industry. The advisory committee consists of seven members who are appointed by the director. The advisory committee shall include:

1. Two members who are funeral directors licensed under this chapter.

2. One member who is an embalmer licensed under this chapter.

3. One member who is a cremationist licensed under this chapter.

4. Three public members who are residents of this state, one of whom is an owner or manager of a business that has no pecuniary or proprietary interest in a funeral establishment or crematory or in the sale of funeral goods and services. The public members shall not be licensed under this chapter currently or have been licensed under this chapter in the five years preceding appointment.

B. Members of the advisory committee shall not receive compensation but shall be reimbursed for subsistence expenses pursuant to section 38-624 and travel expenses pursuant to section 38-623.

C. The advisory committee shall annually select from its membership a chairperson for the advisory committee.

D. The advisory committee shall hold meetings:

1. Twice per year at a time and place designated by the chairperson.

2. At the director's request.

E. The advisory committee shall:

1. Provide the director with such recommendations as it deems necessary and beneficial to the best interests of the public.

2. Provide recommendations on specific questions or proposals as the advisory committee deems necessary or as requested by the director.

§ 32-1307 Powers and duties of department

A. The department shall:

1. Administer and enforce this chapter and the rules adopted pursuant to this chapter.

2. Maintain a record of the name and the mailing or employer's business address of each licensee.

3. Investigate alleged violations of this chapter and the rules adopted pursuant to this chapter.

4. In accordance with title 41, chapter 6, adopt rules that include provisions relating to the following:

(a) The keeping and disposition of records by licensees.

(b) Standards of practice, professional conduct, competence and consumer disclosure relating to owning or operating a funeral establishment, alkaline hydrolysis facility or crematory, funeral directing, embalming, alkaline hydrolysis and cremation.

(c) The prohibition of deceptive, misleading or professionally negligent practices in advertising, offering or selling funeral goods and services by funeral establishments, crematories and licensees and agents of funeral establishments, crematories and licensees. The rules shall specifically prohibit misrepresentation of the legal requirements concerning preparing and interring dead human bodies.

(d) Standard price disclosure formats and price list requirements and definitions to facilitate price comparisons by members of the public.

(e) Guidelines to enable members of the public to determine the substantial equivalency of funeral goods available for sale to the public.

(f) Administrative and investigative procedures.

(g) The efficient administration of the department's affairs and the enforcement of this chapter.

(h) The inspection of all funeral establishments, crematories and alkaline hydrolysis facilities at least once every five years.

(i) Any other matters the department deems necessary to carry out this chapter.

B. The department may:

1. Subject to title 41, chapter 4, article 4, employ investigative, professional and clerical employees as it deems necessary to carry out this chapter. Compensation of these employees shall be determined pursuant to section 38-611.

2. In connection with investigations or administrative hearings, issue subpoenas to compel the attendance of witnesses and the production of books, papers, contracts, agreements and other documents or records in any form, administer oaths and take testimony and evidence concerning all matters within its jurisdiction. The department may pay the fees and expenses of witnesses who appear in any proceeding before the department. If a person refuses to obey a subpoena issued by the department, the department may invoke the aid of any court in this state to require the attendance and testimony of witnesses and the production of documentary evidence.

3. Contract with other state and federal agencies as it deems necessary to carry out this chapter.

4. Charge reasonable fees to distribute materials that the department prints or has printed at its expense and for the costs of mailing these materials.

5. Charge the reasonable costs of a fingerprint background check to an applicant for licensure.

§ 32-1308 Fees and monies collected; civil penalties

A. The department shall deposit, pursuant to sections 35-146 and 35-147, all fees and other monies collected under this chapter in the health services licensing fund established by section 36-414.

B. All civil penalties collected under this chapter shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

§ 32-1309 Fees

A. The department shall establish and collect application fees in an amount to be determined by the department for each of the following:

1. A funeral director license.

2. An embalmer license.

3. A funeral director or embalmer license for a person who does not reside in this state.

4. A funeral establishment license:

(a) For a new establishment, new owner or new location.

(b) For a change of name.

5. A crematory license:

(a) For a new crematory, new owner or new location.

(b) For a change of name.

6. A cremationist license.

7. An alkaline hydrolysis facility license:

(a) For a new alkaline hydrolysis facility.

(b) For a change of name or location.

8. An alkaline hydrolysis operator license.

9. An interim alkaline hydrolysis facility permit.

10. An extension of an interim alkaline hydrolysis facility permit.

11. A prearranged funeral sales establishment endorsement.

12. A multiple funeral director license.

B. The department shall establish and collect license issuance fees in an amount to be determined by the department for each of the following:

1. A funeral director license.

2. An embalmer license.

3. A cremationist license.

4. An alkaline hydrolysis facility license.

5. An alkaline hydrolysis operator license.

6. A multiple funeral director license.

C. A license, registration or endorsement issued pursuant to this chapter does not expire and remains valid unless:

1. The department subsequently revokes or suspends the license, registration or endorsement.

2. Except as provided in section 32-4301, the license, registration or endorsement is considered void because the licensee did not pay the licensing, registration or endorsement fee, outstanding civil penalties or provider agreement fees or did not enter into an agreement with the department to pay all outstanding fees or penalties before the due date of the licensing, registration or enforcement fees or civil penalties.

D. The department shall establish and collect fees in an amount to be determined by the department for each of the following:

1. A duplicate license.

2. A reexamination for a state laws and rules examination.

3. Inactive licensure.

4. Reinstatement of an inactive license.

5. An interim permit for a funeral establishment, crematory and alkaline hydrolysis facility.

6. Filing an annual trust report.

7. Filing a late or incomplete annual trust report.

E. A person who was a licensed embalmer's assistant on March 31, 2023 may continue to be licensed if the licensed embalmer's assistant pays any lapsed licensing fees and continues to pay the licensing or endorsement fee before the licensing or endorsement fee due date.

§ 32-1310 Availability of information and records; complaints; release to public

A. All examination materials, records of examination grading and performance, and transcripts of educational institutions concerning applicants and licensees are confidential and are not public records.

B. Information received and records kept by the department for the purposes of administering this chapter are available to the public, except for sources of information that cause the department to believe that an inspection of a licensee or facility is needed to determine the extent of compliance with this chapter and rules adopted pursuant to this chapter.

C. After receiving a complaint, the department shall inform the licensee of the general nature of the complaint.

D. The department may release the general nature of a complaint to the public.

§ 32-1311 Immunity

A. Employees and agents of the department are immune from personal liability with respect to acts done and actions taken in good faith and in furtherance of the purposes of this chapter.

B. Any person who reports or provides information to the department in good faith is not subject to an action for civil damages.

Article 2 Licensing and Registration

§ 32-1321 License requirement; persons not required to be licensed; nontransferability; display

A. A person shall not advertise or engage in funeral directing, cremation, alkaline hydrolysis or embalming without having a valid license issued by the department.

B. This article does not prohibit:

1. A person from performing removals or arrangements or from directing funeral services if the person is under the direction of and accountable to a licensed funeral director.

2. A licensed cemetery employee from selling burial or final disposition items or from arranging or directing cemetery services.

C. A license issued by the department is not transferrable or subject to sale or assignment, whether by a voluntary or involuntary process.

D. A licensee shall conspicuously display the person's license at the person's place of employment.

§ 32-1322 Embalmers and funeral directors; qualifications for licensure

A. An applicant for licensure as an embalmer shall:

1. Pass the funeral service science section of the national board examination.

2. Pass the embalmer state laws and rules examination.

3. Be a graduate of an accredited or provisionally accredited school of mortuary science.

4. Have successfully assisted in embalming at least twenty-five dead human bodies.

B. An applicant for licensure as a funeral director shall:

1. Pass the funeral service arts section of the national board examination.

2. Pass the funeral director state laws and rules examination.

3. Be a graduate of an accredited or provisionally accredited school of mortuary science.

4. Have successfully assisted in arranging and directing at least twenty-five funerals.

C. An applicant for licensure under this section may not have a disqualifying criminal history as determined by the department pursuant to section 41-1093.04.

§ 32-1323 Embalmers and funeral directors; application for licensure

A. An applicant for licensure as an embalmer or funeral director shall submit a completed application on a form prescribed by the department. The application shall be subscribed under oath and shall be accompanied by:

1. Any educational, professional and employment information required by the department in its rules.

2. A completed fingerprint card and the prescribed fingerprint background check fee.

3. Any other information required by the department.

4. All applicable fees pursuant to section 32-1309.

B. If the department finds that the applicant meets the criteria for licensure under this article and rules adopted by the department, the department shall issue the appropriate license.

§ 32-1324 Multiple funeral director license; display; nontransferrability

A. An applicant for a license as a funeral director who is proposing to manage and supervise the operations of more than one funeral establishment shall apply on a form prescribed by the department. The application shall be accompanied by the prescribed fee for the additional funeral establishment.

B. The department shall review the application for a multiple funeral director license, and, if it is reasonable to believe that the funeral establishments can be adequately supervised and managed by the applicant, the department shall issue the license.

C. A funeral director who holds a multiple funeral director license shall display the license at the funeral establishment to which the license is issued. A multiple funeral director license is not transferable without prior approval of the department.

§ 32-1326 Embalmers and funeral directors; temporary licenses

The department may issue a temporary embalmer or funeral director license to a person who is not licensed in this state in cases of emergency or public disaster or for educational purposes if the person holds an active license in good standing issued by the funeral services licensing authority of another jurisdiction. The department shall issue a license under this section only for the category of licensure for which the person holds an active license issued by another jurisdiction. A temporary license issued under this section is valid for thirty days. The department may renew a temporary license once for a period of thirty or fewer days.

§ 32-1327 National board examination

A. A person who desires to take the national board examination shall submit to the department:

1. An examination application on a form prescribed by the department.

2. Documentation of a high school diploma or its equivalent.

3. Documentation of the person's graduation from an accredited or provisionally accredited school of mortuary science.

4. All applicable fees pursuant to section 32-1309.

B. A person who takes the national board examination must achieve a passing score according to the standards of the international conference of funeral service examining boards.

C. The department shall accept a passing score that an applicant achieved on the national board examination taken within the five years immediately preceding the date that the applicant filed a license application with the department.

§ 32-1328 State laws and rules examination

A. The department shall administer a state laws and rules examination at least once every three months. When the department receives a license application, it shall schedule the applicable state laws and rules examination for the applicant.

B. Each state laws and rules examination shall contain at least fifty questions on the following subjects:

1. The provisions of this chapter and rules adopted by the department pursuant to this chapter.

2. The applicable provisions of title 36 and rules adopted by the department pursuant to the applicable provisions of title 36.

C. A score of seventy-five or more is required to pass the state laws and rules examination.

D. The department shall accept the passing score of an applicant achieved on a state laws and rules examination taken within one year immediately preceding the date that the applicant filed a license application with the department.

§ 32-1329 Reexamination

A. An applicant who fails to pass the national board examination or the state laws and rules examination may retake the examination within one year after the date that the applicant filed a license application with the department. A person who desires to retake the state laws and rules examination shall request that the department schedule a second examination and shall submit the applicable fee pursuant to section 32-1309.

B. An applicant who fails to pass the national board examination or the state laws and rules examination within one year after the date that the applicant originally filed a license application shall submit a new license application and the applicable fee pursuant to section 32-1309.

§ 32-1333 Notice of change in employment

A. An embalmer or funeral director who is licensed under this article shall notify the department in writing within ten business days after a change in employment. The notice shall include the names of the former and the new establishment.

B. A responsible funeral director who is licensed under this article shall notify the department in writing within five business days after a change in employment, excluding Saturdays, Sundays and other legal holidays.

§ 32-1334 Inactive status

A. A licensed embalmer, funeral director, cremationist or alkaline hydrolysis operator who retires from practicing embalming, funeral directing, cremation or alkaline hydrolysis and who is not currently practicing embalming, funeral directing, cremation or alkaline hydrolysis in this state may request that the department place the person's license on inactive status. The person shall submit the request on a form prescribed by the department and shall pay the applicable fee pursuant to section 32-1309.

B. A person who holds an inactive license shall not practice:

1. Embalming, funeral directing or cremation in this state.

2. Alkaline hydrolysis in this state unless there is another individual at the alkaline hydrolysis facility who operates or supervises the alkaline hydrolysis facility and who is licensed pursuant to this chapter.

C. A person who holds an inactive license may request that the department reactivate the person's license. If an inactive licensee desires to reactivate a license, the inactive licensee shall submit a completed application on a form prescribed by the department, the applicable fee pursuant to section 32-1309, an attestation that the person has completed the required continuing education units, a completed fingerprint card and the prescribed fingerprint background check fee.

§ 32-1335 Out-of-state licensees

A. A person who holds an embalmer or funeral director license in good standing that was issued by the funeral services licensing authority of another jurisdiction and who desires an embalmer or funeral director license in this state shall meet the requirements and qualifications for licensure prescribed in this article.

B. Notwithstanding subsection A of this section, the department may waive the testing requirements of section 32-1322, subsection A, paragraph 1 and subsection B, paragraph 1 if the person has actively practiced embalming or funeral directing in another jurisdiction within the three years immediately preceding the date that the person applies for a license in this state and the department determines that the requirements for licensure in the other jurisdiction are equal to or more stringent than the requirements prescribed in this article.

§ 32-1336 Department recognition; colleges of funeral service education or mortuary science

The department shall recognize any college of funeral service education or mortuary science that is either:

1. Accredited or provisionally accredited by the American board of funeral service education.

2. Approved by an accrediting agency that is recognized by the United States department of education and the council on postsecondary accreditation and requires a course of instruction in funeral service education or mortuary science that is equivalent to the course of instruction required by the American board of funeral service education.

§ 32-1338 Continuing education requirements; waiver

A. A person who is licensed pursuant to this article shall complete continuing education designed to educate the person regarding current skills and procedures and developments in the funeral industry. The department may prescribe in its rules the number of hours of continuing education required each year, not to exceed six hours, and the subject matter to be covered.

B. The department shall waive the continuing education requirements for persons who are serving in the United States armed forces in time of war.

§ 32-1339 Fingerprinting of applicants; background checks

An applicant for a license under this article other than a temporary license shall submit a full set of fingerprints to the department of health services for the purpose of conducting a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety is authorized to exchange this fingerprint data with the federal bureau of investigation.

Article 2.1 Alkaline Hydrolysis

§ 32-1341 Alkaline hydrolysis facilities; license required

A person may not advertise or operate an alkaline hydrolysis facility without first obtaining an alkaline hydrolysis facility license issued by the department.

§ 32-1342 Alkaline hydrolysis facilities; requirements

A. An alkaline hydrolysis facility licensed under this article must meet all of the following:

1. Have a building or structure that complies with applicable local and state building codes, zoning laws and ordinances and wastewater management and environmental standards and that contains one or more alkaline hydrolysis vessels.

2. Use a method that is approved by the department to dry the hydrolyzed remains and that occurs within the licensed facility.

3. Have an appropriate refrigerated holding facility or another means for refrigerating dead human bodies awaiting alkaline hydrolysis that maintains dead human bodies at or below thirty-eight degrees fahrenheit.

B. An alkaline hydrolysis facility:

1. Shall employ a licensed alkaline hydrolysis operator to carry out the process of alkaline hydrolysis. This paragraph does not apply if the alkaline hydrolysis facility is operated or supervised by a responsible cremationist.

2. Shall provide proper procedures for all personnel.

3. Shall comply with this chapter and other applicable state and federal laws relating to occupational and workplace health and safety.

§ 32-1343 Alkaline hydrolysis operators; licensure; application; qualifications; fingerprinting

A. An applicant for an alkaline hydrolysis operator license shall submit a completed application on a form prescribed by the department. The application shall be subscribed under oath and shall be accompanied by the applicable fee pursuant to section 32-1309 and any additional information that the department deems necessary.

B. An applicant for an alkaline hydrolysis operator license shall meet both of the following:

1. Submit a completed fingerprint card and the prescribed fingerprint records check fee to the department of health services to enable the department of health services or the department of public safety to conduct a criminal records check.

2. Meet the educational requirements as prescribed by the department in rule.

C. An applicant for licensure under this section may not have a disqualifying criminal history as determined by the department pursuant to section 41-1093.04.

D. If the department finds that the applicant meets the criteria for an alkaline hydrolysis operator license under this section and under rules adopted by the department, the department shall issue an alkaline hydrolysis operator license. A person does not need to be licensed as an alkaline hydrolysis operator in order to practice as an alkaline hydrolysis operator if the alkaline hydrolysis facility is operated or supervised by a responsible cremationist or another person who is a licensed alkaline hydrolysis operator.

§ 32-1344 Alkaline hydrolysis facilities; licensure requirements; application

A. An application for an alkaline hydrolysis facility shall be in a form prescribed by the department. If the applicant is a business entity, the entity shall direct a natural person who is an owner of the entity to submit its application. The application shall be subscribed under oath and shall be accompanied by the applicable fee pursuant to section 32-1309 and any additional information that the department deems necessary. A business entity that applies for a license pursuant to this article shall submit to the department with its application for licensure a copy of its partnership agreement, its articles of incorporation or organization or any other organizational documents required to be filed with the corporation commission.

B. An individual who applies for an alkaline hydrolysis facility license pursuant to this article, or if the applicant is a business entity, the owners, partners, officers, directors and trust beneficiaries of the entity, shall submit a completed fingerprint card, criminal history background information and a fingerprint background check fee to the department.

C. The department shall inspect the premises of an alkaline hydrolysis facility and investigate the character and other qualifications of all applicants for licensure pursuant to this article to determine whether the alkaline hydrolysis facility and the applicants are in compliance with the requirements of this article and rules adopted by the department.

D. If the department finds that the applicant meets the criteria for licensure under this article and rules adopted by the department, the department shall issue an alkaline hydrolysis facility license.

§ 32-1345 Display of license

An alkaline hydrolysis facility shall display its license in a location that enables any member of the public who enters the alkaline hydrolysis facility to observe and read the license.

§ 32-1346 Alkaline hydrolysis facilities; nontransferability of license; interim permits; confidentiality; definition

A. An alkaline hydrolysis facility license issued by the department is not transferable or subject to sale or assignment, whether by a voluntary or involuntary process.

B. If a change of ownership of an alkaline hydrolysis facility occurs, the licensee shall notify the department in writing and shall surrender the license to the department within twenty days after the change of ownership. The new owner shall also notify the department in writing within twenty days after the change of ownership and shall submit an application for an alkaline hydrolysis facility license to the department pursuant to section 32-1344.

C. The department shall issue an interim permit to the new owner of an alkaline hydrolysis facility to allow the new owner to continue operating the alkaline hydrolysis facility during the period that the new owner's license application is pending if the following conditions are met:

1. The new owner notifies the department of the change of ownership and submits an application for an interim permit and the applicable fee pursuant to section 32-1309 at least three days, excluding Saturdays, Sundays and holidays, after the change takes place. Notice shall be given during regular business hours.

2. The alkaline hydrolysis facility continues to meet the requirements of section 32-1342.

D. An interim permit issued by the department pursuant to this section shall be for not more than forty-five days and may not be extended except as provided in subsection E of this section. An interim permit is a conditional permit and authorizes the holder to operate an alkaline hydrolysis facility as would be allowed under an alkaline hydrolysis facility license issued pursuant to this article. The holder of an interim permit is subject to the licensing rules and disciplinary proceedings prescribed in this chapter and in rules adopted by the department pursuant to this article.

E. Notwithstanding subsection D of this section, for good cause shown, the department may extend an interim permit for not more than forty-five days.

F. Until the new owner's license is issued, the department shall keep confidential all notices filed with the department by the prospective new owner of an alkaline hydrolysis facility pursuant to this section.

G. For the purposes of this section, "regular business hours" means between the hours of 8:00 a.m. and 5:00 p.m. on any day of the week other than Saturday, Sunday or any other legal holiday or a day on which the department is authorized or obligated by law or executive order to close.

§ 32-1347 Change of name or location

A. The owner of a licensed alkaline hydrolysis facility who desires to change the name of the alkaline hydrolysis facility shall submit an application on a form prescribed by the department. The application shall be subscribed under oath and shall be accompanied by the applicable fee.

B. The owner of a licensed alkaline hydrolysis facility shall submit an application on a form prescribed by the department to change the location of the alkaline hydrolysis facility. The application shall be subscribed under oath and shall be accompanied by the applicable fee. Before the department approves a request for a change of location pursuant to this section, the owner shall demonstrate that the new location meets the requirements of this article.

Article 3 Regulation and Enforcement

§ 32-1361 Licensed embalmers; supervision; certification of embalming; exception for embalmer's assistants

A. Only a licensed embalmer may embalm a dead human body, except that another person who is employed by a funeral establishment and on a pathway to licensure may embalm a dead human body under the direct supervision of a licensed embalmer.

B. A licensed embalmer who embalms or supervises the embalming of a dead human body shall certify the embalming with the embalmer's signature and license number.

C. For the purposes of this section, a person is on a pathway to licensure if both of the following apply:

1. The person has been employed by a funeral establishment.

2. The person intends to become a licensed embalmer after assisting in embalming at least twenty-five dead human bodies or intends to become a licensed funeral director by assisting in arranging and directing at least twenty-five funerals.

D. The pathway to licensure may not exceed three years and begins either:

1. While the person is enrolled in an accredited or provisionally accredited school of mortuary science and is assisting embalming dead human bodies under the direct supervision of a licensed embalmer or assisting in arranging and directing funerals.

2. After the person has graduated from an accredited or provisionally accredited school of mortuary science and passed the state laws and rules examination and the national board examination and is assisting in embalming dead human bodies under the direct supervision of a licensed embalmer or assisting in arranging and directing funerals.

E. A person on a pathway to licensure or the funeral establishment providing direct supervision of a person on a pathway to licensure shall submit to the department on a form approved by the department information necessary for the department to verify that the person is on a pathway to licensure.

F. This section does not apply to a person who was a licensed embalmer's assistant on March 31, 2023.

§ 32-1362 Enucleation of eyes by licensed embalmers

An embalmer who is licensed in this state may enucleate the eyes of a dead human body for the purposes specified in and pursuant to title 36, chapter 7, article 3 if the embalmer has completed a course in eye enucleation approved by the Arizona medical board.

§ 32-1363 Use of funeral director title; unlawful use

A. A person who is licensed as a funeral director under article 2 of this chapter shall be known as a "funeral director", "undertaker" or "mortician" or any other title that clearly indicates that the person is engaged in the business of funeral directing.

B. It is unlawful for a person who is not licensed as a funeral director under article 2 of this chapter to practice funeral directing or to advertise in a manner or assume any title that would imply that the person is engaged in the business of funeral directing.

§ 32-1364 Crimes against the dead; classification

A. It is unlawful for a person, without the authority of law or as normally required to store, prepare, disinfect or embalm a dead human body according to standards of practice in the funeral industry, to mutilate a dead human body.

B. It is unlawful for a person, without the authority of law, to disinter or remove a dead human body or any part of a dead human body from its sepulcher, grave or other interment site, or from the place where the body is awaiting disposition, with malice or wantonness or with the intent to sell or dissect the body.

C. It is unlawful for a person, without the authority of law, to obtain or convert property that is located with or affixed to a dead human body or any part of a dead human body with the intent to deprive the decedent or the decedent's estate of the property.

D. It is unlawful for a person to engage in necrophilia. A person engages in necrophilia by:

1. Having sexual intercourse with a dead human body.

2. Having sexual contact with a dead human body, other than the contact normally required to store, prepare, disinfect or embalm a dead human body according to standards of practice in the funeral industry.

E. For the purposes of subsection D:

1. "Sexual contact" means any direct or indirect touching, including oral contact, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object.

2. "Sexual intercourse" means penetration into the vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.

F. A person who violates this section is guilty of a class 4 felony.

§ 32-1365 Violations; classification

A. It is unlawful:

1. For an embalmer or embalmer's assistant who knows or should know of a fact that is sufficient to raise suspicion of a crime related to the cause of death or a crime against a dead human body to embalm a dead human body without the permission of the county medical examiner or any other proper official in whose jurisdiction the embalming is to be performed.

2. To disinter a dead human body for removal to any location other than the original cemetery of burial except under the direction of a licensed funeral director.

3. To use, for burial purposes, a casket that was previously used as a receptacle for the burial or other disposition of a dead human body.

4. To sell a casket that has been used for rental purposes unless fully disclosed in writing to the purchaser and at least the pillow and the mattress have been replaced.

5. For a funeral director or embalmer, or an agent of a funeral director or embalmer, after a death or while a death is impending, to knowingly pay, offer to pay or cause to be paid, directly or indirectly, a sum of money or any other valuable consideration for securing business relating to the death. This paragraph does not prohibit the payment of commissions to salespersons and funeral directors who are employed by a funeral establishment.

6. To knowingly pay, offer to pay or cause to be paid any commission, bonus, rebate or other consideration to a funeral director or embalmer, or to an agent or employee of a funeral director or embalmer, as an inducement to cause a dead human body to be unlawfully disposed of in a crematory or cemetery or to recommend the unlawful disposition of a dead human body in a crematory or cemetery.

7. For any funeral establishment or funeral director to advertise under any name that tends to mislead the public or that sufficiently resembles the professional or business name of another licensed funeral director or establishment as to cause confusion or misunderstanding.

8. For a funeral director or embalmer or an agent of a funeral director or embalmer responsible for directing the lawful disposition of a dead human body to hold a direct pecuniary or proprietary interest in a procurement organization as defined in section 36-841. This paragraph does not preclude reasonable payments to a funeral establishment or a licensee for preparing, transporting, preserving, storing and delivering a dead human body to a procurement organization as defined in section 36-841.

9. For a funeral establishment owner or operator to influence employees of the funeral establishment to direct human remains to a procurement organization in which the owner or operator of the funeral establishment has a direct pecuniary or proprietary interest.

10. For a procurement organization and a funeral establishment to operate on the same premises.

11. For a person who is licensed or registered pursuant to this chapter to place the human remains of one person, whether inside or outside of a container, including a body bag, casket, alternative container or alkaline hydrolysis vessel, in a location that is on top of the human remains of another person.

B. Unless another penalty is specifically provided, a person who intentionally and knowingly violates any provision of this chapter is guilty of a class 2 misdemeanor.

§ 32-1365.01 Lawful disposition of dead human body; authorization document; legally competent adults; immunity

A. A legally competent adult may prepare a written statement directing the cremation or other lawful disposition of the legally competent adult's own remains pursuant to section 36-831. The written statement may but need not be part of the legally competent adult's will.

B. The legally competent adult who is the subject of a document described in subsection A of this section shall sign and date the document. The document shall be notarized or witnessed in writing by at least one adult who affirms that the notary or witness was present when the legally competent adult signed and dated the document and that the legally competent adult appeared to be of sound mind and free from duress at the time of execution of the document.

C. A document that conforms to this section authorizes a crematory, cemetery, alkaline hydrolysis facility or funeral establishment to carry out the wishes of the legally competent adult who is the subject of the document. It is not necessary for a crematory, cemetery, alkaline hydrolysis facility or funeral establishment to obtain the consent or concurrence of any other person when it cremates or otherwise provides for the lawful disposition of a dead human body pursuant to instructions contained in a document that conforms to this section.

D. This section does not mandate that a crematory, cemetery, alkaline hydrolysis facility or funeral establishment cremate or otherwise provide for the lawful disposition of a dead human body pursuant to the document unless the legally competent adult who executed the document made any financial arrangements necessary to effectuate the legally competent adult's wishes as expressed in the document.

E. A crematory, cemetery, alkaline hydrolysis facility or funeral establishment that cremates or otherwise provides for the lawful disposition of a dead human body in good faith reliance on an apparently genuine document executed pursuant to this section is immune from criminal and civil liability and is not subject to professional discipline. The decision of a crematory, cemetery, alkaline hydrolysis facility or funeral establishment to cremate or otherwise provide for the lawful disposition of a dead human body in reliance on a document executed pursuant to this section is presumed to be made in good faith.

§ 32-1365.02 Authorizing agents; consent for cremation, alkaline hydrolysis, disinterment or embalming; definition

A. Except as provided in section 32-1365.01 and in subsection E of this section, it is unlawful to cremate, use alkaline hydrolysis or disinter a dead human body without prior written consent of the authorizing agent.

B. Except as provided in section 32-1365.01, it is unlawful to embalm a dead human body without prior oral or written consent of the authorizing agent.

C. A funeral establishment shall create a written record of an oral consent given pursuant to this section that includes all of the following:

1. The name of the authorizing agent.

2. The relation of the authorizing agent to the deceased.

3. The date and time that consent was given.

4. The name of the person who obtained the consent.

5. Any other information required by the department.

D. In determining who the proper authorizing agent is, the order of preference is the same as provided in section 36-831. If there is more than one member in a category listed in section 36-831 entitled to serve as the authorizing agent, final arrangements may be made by any member of that category unless that member knows of an objection by another member of the category. If an objection is known, final arrangements shall be made by a majority of the members of the category who are reasonably available.

E. On the order of a court or a county medical examiner, or a person performing the duties of a county medical examiner, a dead human body shall be disinterred.

F. If none of the persons listed in section 36-831 is willing or financially capable of providing for the cremation, alkaline hydrolysis or embalming of a dead human body, the public fiduciary or other person who is designated by the county in which a death occurs to handle funeral arrangements may order the cremation, alkaline hydrolysis or embalming.

G. A funeral establishment, an employee or agent of a funeral establishment or a licensee shall exercise due diligence to obtain the consent required pursuant to this section from the proper authorizing agent. It is an affirmative defense to any action or claim brought against a crematory, cemetery, alkaline hydrolysis facility or funeral establishment relating to the disposition of a dead human body that the crematory, cemetery, alkaline hydrolysis facility or funeral establishment relied in good faith on the direction of a person who claimed to be the authorizing agent in providing for the lawful disposition of a dead human body. The decision of a crematory, cemetery, alkaline hydrolysis facility or funeral establishment to cremate or otherwise provide for the lawful disposition of a dead human body in reliance on the direction of a person who claims to be the authorizing agent is presumed to be in good faith unless the crematory, cemetery, alkaline hydrolysis facility or funeral establishment has actual knowledge that the claim is false.

H. If the authorizing agent is not reasonably available or unable to act as the authorizing agent, the person's right to be the authorizing agent shall pass to the next person or category of persons in the order of preference prescribed in section 36-831.

I. It is presumed that the authorizing agent is not reasonably available to act as authorizing agent if the crematory, cemetery, alkaline hydrolysis facility or funeral establishment after exercising due diligence has been unable to contact the individual or if that person has been unwilling or unable to make final arrangements for the disposition of the decedent within fifteen days after the initial contact by the crematory, cemetery, alkaline hydrolysis facility or funeral establishment. If a person in a prior category makes an initial contact with the crematory, cemetery, alkaline hydrolysis facility or funeral establishment or becomes able before the final disposition of the decedent, that person resumes that person's right to serve as the authorizing agent.

J. Any dispute among any of the persons listed in section 36-831, subsection A concerning the right to control the disposition, including cremation or alkaline hydrolysis, of a decedent's remains shall be resolved by the parties to the dispute or by a court of competent jurisdiction in order to expedite the resolution of a dispute among the parties. A crematory, cemetery, alkaline hydrolysis facility or funeral establishment is not liable for refusing to accept the decedent's remains or to inter, cremate, use alkaline hydrolysis or otherwise dispose of a decedent's remains until it receives a court order or other suitable confirmation that the dispute has been resolved or settled. A crematory, cemetery, alkaline hydrolysis facility or funeral establishment may bring an action in a court of competent jurisdiction in order to expedite the resolution of a dispute among the parties listed in section 36-831, subsection A.

K. For the purposes of this section, "reasonably available" means a person who is able to be contacted by the crematory, cemetery, alkaline hydrolysis facility or funeral establishment without undue effort and who is willing and able to act within fifteen days after the initial contact by the crematory, cemetery, alkaline hydrolysis facility or funeral establishment.

§ 32-1366 Grounds for disciplinary action

A. After a formal hearing, the department may deny or revoke a license or may take disciplinary action against any embalmer, funeral director, alkaline hydrolysis operator or other person who is licensed pursuant to this chapter for any of the following reasons:

1. Commission of an act of unprofessional conduct.

2. Repeated or continuing negligence or any other professional incompetence in the practice of funeral directing, embalming or alkaline hydrolysis.

3. Violation of this chapter or any rule adopted pursuant to this chapter.

4. Violation of title 44, chapter 10, article 7.

B. After a formal hearing, the department may deny or revoke a license or take disciplinary action against a responsible funeral director for a violation of this chapter or any rule adopted pursuant to this chapter by an employee of the licensed funeral establishment that the responsible funeral director manages.

§ 32-1367 Investigations; disciplinary proceedings; civil penalty; probationary terms

A. The department shall conduct an investigation when the department receives a complaint that appears to show the existence of any grounds for disciplinary action under this chapter or rules adopted pursuant to this chapter.

B. The department on its own initiative may investigate any information that appears to show the existence of any grounds for disciplinary action under this chapter or rules adopted pursuant to this chapter.

C. After completing an investigation, the department may take any or all of the following disciplinary actions:

1. Issue a letter of censure or reprimand.

2. Impose probationary terms as the department deems necessary to protect the public health, safety and welfare and to rehabilitate or educate the licensee. Probationary terms imposed pursuant to this paragraph may include temporary suspension of a license or endorsement, restriction of the licensee's right to practice pursuant to this chapter and a requirement that restitution be made to any funeral service consumer or other person who was injured by a violation of this chapter or rules adopted pursuant to this chapter.

3. Assess a civil penalty against a person who violates this chapter or a rule adopted pursuant to this chapter in an amount of not more than $1,000 for each violation. Each day that a violation occurs constitutes a separate violation.

4. Suspend or revoke a license or endorsement pursuant to chapter 41, chapter 6, article 10.

D. In determining the amount of a civil penalty pursuant to subsection C of this section, the department shall consider the following:

1. Repeated violations of statutes or rules by the person.

2. Patterns of noncompliance by the person.

3. The types of violations.

4. The severity of violations.

5. The potential for and occurrences of actual harm.

6. Threats to health and safety.

7. The number of persons affected by the violations.

8. The number of violations.

9. The size of the facility.

10. The length of time that the violations have been occurring.

E. Actions to enforce the collection of civil penalties assessed pursuant to subsection C of this section shall be brought by the attorney general or the county attorney in the name of the state in the justice court or the superior court in the county in which the violation occurred.

F. If a licensee refuses to participate in an investigation, the department may take any or all of the disciplinary actions listed in subsection C of this section.

G. In addition to the authority given to the department in this section, the department may impose probationary terms as described in subsection C, paragraph 2 of this section after the department inspects a funeral establishment, crematory or alkaline hydrolysis facility if the department deems the probationary terms necessary to protect the public health, safety and welfare and to rehabilitate or educate the licensee.

§ 32-1369 Cease and desist orders; injunctive relief; civil penalty

A. In addition to all other remedies, if it appears to the department, either on complaint or otherwise, that any person has engaged in or is engaging in any act, practice or transaction that constitutes a violation of this chapter, of title 44, chapter 10, article 7 or of any rule adopted pursuant to this chapter, the department may either:

1. Serve a cease and desist order on the person by certified mail or personal service requiring the person to cease and desist immediately from engaging in the act, practice or transaction.

2. Apply, through the attorney general or county attorney of the county in which the act, practice or transaction is alleged to have been committed, to the superior court in that county for an injunction restraining the person from engaging in the act, practice or transaction or doing any act in furtherance of the act, practice or transaction. On a proper showing, the court shall grant a temporary restraining order, a preliminary injunction or a permanent injunction without bond. Process in an action under this paragraph may be served on the defendant in any county of this state where the defendant transacts business or is found.

B. A person who receives a cease and desist order issued by the department pursuant to subsection A, paragraph 1 of this section is entitled to a hearing pursuant to title 41, chapter 6, article 10 within thirty days after the effective date of the order.

C. If a person fails to comply with an order issued by the department pursuant to subsection A, paragraph 1 of this section, the department shall file an action pursuant to subsection A, paragraph 2 of this section to restrain and enjoin the person from engaging in the act, practice or transaction. The court in the action shall proceed as in other actions for injunction. If the court finds that the person wilfully failed to obey a valid cease and desist order issued by the department, the court shall impose a civil penalty of at least $250 and not more than $1,000 per violation.

Article 3.1 Funeral Practices

§ 32-1371 List of prices of funeral goods and services offered

A. The department shall adopt rules that require every licensee to give a standardized written or printed price list for retention to each person who personally inquires about funeral arrangements or prices of funeral goods and services. A funeral establishment shall offer each person the price list on beginning a discussion either of funeral arrangements or of the selection of funeral goods and services.

B. A price list shall be presented in an accurate and readable manner in order to facilitate price comparisons by funeral service consumers.

§ 32-1372 Display of merchandise prices; rules

The department shall adopt rules that require each funeral establishment to place a price card in a conspicuous place with each casket, alternative container, outer burial container, alkaline hydrolysis container or other item of funeral goods available for purchase. A funeral establishment shall place each price card in a location that enables a person to view the card without physically handling the card. Merchandise photographs must have the price of the merchandise displayed in a conspicuous manner.

§ 32-1373 Statement of funeral goods and services

A. A licensee shall not enter into a contract to furnish funeral goods and services in connection with the burial or other disposition of a dead human body until the licensee has first delivered to the potential purchaser a written or printed statement of funeral goods and services that contains the following information, if this information is available at the time the contract is executed:

1. The total charge for the services of the licensee and the use of the funeral establishment, including preparing the body and other professional services, and the charge for using automotive and other necessary equipment.

2. An itemization of charges for the casket, alternative container or alkaline hydrolysis container and any outer burial container.

3. An itemization of fees or charges and the total amount of cash advances made by the licensee for transportation, flowers, cemetery or crematory charges, newspaper notices, clergy honoraria, transcripts, telegrams, long-distance telephone calls, music and any other advances authorized by the purchaser.

4. The method of payment and any interest charges.

5. An itemization of any fees or charges not included in paragraphs 1 through 4 of this subsection.

6. The total amount of charges itemized and included pursuant to this subsection.

7. The location where the deceased will be held, embalmed or cremated or will undergo alkaline hydrolysis if the location is not the funeral establishment's premises.

8. A statement containing the name, address and telephone number of any corporation, limited liability company, partnership or limited partnership that holds an ownership interest of ten percent or more in the funeral establishment or crematory.

B. The statement of funeral goods and services delivered to the potential purchaser shall also contain a conspicuous statement informing the potential purchaser that a casket, outer burial container, alternative container used for cremation or covering used for alkaline hydrolysis may be purchased and used, at the option of the purchaser, in connection with the funeral services and final disposition of human remains, but that, except as provided pursuant to section 36-136, the purchase or use of caskets, outer burial containers, alternative containers used for cremation or coverings used for alkaline hydrolysis is not required by law.

C. A licensee shall not bill or cause to be billed any item that is referred to as a cash advanced item unless the net amount paid for the item or items by the funeral establishment is the same as the amount billed by the funeral establishment.

D. If the charge for any of the items prescribed in this section is not known at the time the contract is entered into, the licensee shall advise the purchaser of the charge for the item within a reasonable period after the information becomes available.

E. A funeral director shall certify a statement of funeral goods and services with the funeral director's license number and signature before conducting final services or within five days after the purchaser signs the statement, whichever is earlier.

§ 32-1374 Price list requirement

When a licensee makes arrangements by interstate telecommunications to perform services in this state with any person residing outside this state, the licensee shall provide the written price list required pursuant to section 32-1371 electronically unless the person does not have access to the internet.

§ 32-1375 Price lists; telephone information

A. A licensee or authorized employee shall provide accurate information about the retail prices of funeral goods and services readily available for sale at the funeral establishment at which the licensee or authorized employee is employed to any person inquiring about these prices by telephone.

B. A licensee or authorized employee may provide prices described in subsection A of this section by telephone, by electronic means or by mail.

C. If a person requests a price list by telephone to be sent by mail, the funeral establishment shall mail a price list to the caller and may charge a reasonable postage and handling fee of not more than $2.

§ 32-1376 Consumer information pamphlet

A. The department shall prepare and distribute to funeral establishments a consumer information pamphlet that provides the following information:

1. The meaning of terms used in funeral arrangements.

2. Legal requirements concerning funerals and the disposition of human remains.

3. A description of illegal practices.

4. A description of required disclosures to funeral consumers.

5. A description of the department's responsibilities, including where complaints may be filed.

6. Other relevant information.

B. A funeral establishment shall provide a copy of the consumer information pamphlet for retention to each person who personally inquires about funeral arrangements or funeral goods and services.

§ 32-1377 Rules; relation to federal trade commission regulations

Except as authorized by this article, rules adopted by the department to implement this article shall be at least as stringent as federal trade commission regulations relating to funeral industry practices as authorized by the federal trade commission act as amended and in effect on July 19, 1994 (16 Code of Federal Regulations part 453).

§ 32-1378 Transportation protection agreements

A transportation protection agreement is not insurance under this chapter or under title 20, chapter 29.

Article 4 Licensing and Regulation of Funeral Establishments

§ 32-1381 Funeral establishments; license required

A person shall not advertise or operate for compensation a funeral establishment without first obtaining a funeral establishment license pursuant to this article or an interim permit issued by the department pursuant to section 32-1388.

§ 32-1382 Funeral establishment requirements; responsible funeral director; universal precautions

A. A funeral establishment licensed pursuant to this article shall:

1. Provide separate rooms for each of the following:

(a) An area inside the funeral establishment that may be used as a chapel for conducting funeral services.

(b) If the funeral establishment embalms on-site, a preparation room that meets minimum requirements adopted by the department, that is maintained at all times in a sanitary and professional manner, that has sanitary flooring, drainage and ventilation and that is equipped with instruments and supplies necessary to protect the health and safety of the public and the employees of the funeral establishment in connection with preparing and embalming dead human bodies. This paragraph does not prohibit the embalming of a body at a central location that meets the minimum requirements adopted by the department. If a funeral establishment embalms at a central location and not on-site, the funeral establishment is not required to have an on-site preparation room.

(c) A display area for displaying funeral goods or for displaying funeral goods by photograph or electronic means.

2. If the funeral establishment embalms at a central location and not on-site, provide the department the central location's name, address and license number.

3. Provide access to hearses or funeral coaches that are properly equipped for transporting dead human bodies and that are kept in a sanitary and professional manner.

4. Employ and designate a responsible funeral director to manage and supervise the daily operation of the funeral establishment. The responsible funeral director is responsible for the funeral establishment complying with the laws of this state and the rules of the department. The funeral establishment or the responsible funeral director shall designate a licensed funeral director to act as an interim responsible funeral director.

B. All employees of a funeral establishment who handle dead human bodies shall use universal precautions and shall exercise reasonable care to minimize the risk of transmitting any communicable disease from a dead human body.

§ 32-1383 Application; qualifications for funeral establishment licensure

A. An applicant for a funeral establishment license shall submit a completed application on a form prescribed by the department. The application shall be subscribed under oath and shall be accompanied by the applicable fee pursuant to section 32-1309 and any additional information that the department deems necessary. A business entity that applies for a license pursuant to this article shall submit to the department with its application for licensure a copy of its partnership agreement, its articles of incorporation or any other organizational documents required to be filed with the corporation commission.

B. A person who applies for a license pursuant to this article, or if the applicant is a business entity, the proprietors, partners, officers and directors of the entity, shall submit a completed fingerprint card, criminal history background information and a fingerprint background check fee to the department.

C. The department shall inspect the premises of a funeral establishment and investigate the qualifications of all applicants for licensure.

D. If the department finds that the applicant meets the criteria for licensure under this article and rules adopted by the department, the department shall issue a funeral establishment license.

§ 32-1385 Retention of records

A funeral establishment shall maintain copies of consumer price lists, outer burial container price lists, casket price lists, statements of funeral goods and services and any other documents related to the arrangement or direction of funeral or embalming services for three years after the date that the documents were prepared by or on behalf of the establishment.

§ 32-1387 Display of license

A funeral establishment shall display its license at the establishment to which the license was issued in a location that enables any member of the public who enters the funeral establishment to observe and read the license.

§ 32-1388 Nontransferability of funeral establishment licenses; change of ownership; interim permits; definition

A. A funeral establishment license issued by the department is not transferable or subject to sale or assignment, whether by a voluntary or involuntary process.

B. If there is a change of ownership of a funeral establishment, the licensee shall notify the department in writing and shall surrender the license to the department within twenty days after the change of ownership. The new owner shall also notify the department in writing within twenty days after the change of ownership and shall submit an initial application for a funeral establishment license to the department pursuant to section 32-1383.

C. The department shall issue an interim permit to a new owner of a licensed funeral establishment to allow the new owner to continue the operation of the funeral establishment during the period that the new owner's license application is pending if the following conditions are met:

1. The new owner notifies the department of the change of ownership and submits an application for an interim permit and the applicable fee pursuant to section 32-1309 within three days, excluding Saturdays, Sundays and holidays, after the change takes place. Notice shall be given during regular business hours.

2. The funeral establishment continues to meet the requirements of section 32-1382.

D. An interim permit issued by the department pursuant to this section shall be for not more than forty-five days and shall not be extended except as provided in subsection E of this section. An interim permit is a conditional permit and authorizes the holder to operate a funeral establishment as would be allowed under a funeral establishment license issued pursuant to this article. The holder of an interim permit is subject to the licensing rules and disciplinary proceedings prescribed in this chapter and in rules adopted pursuant to this chapter.

E. Notwithstanding subsection D of this section, for good cause shown, the department may extend an interim permit for not more than forty-five days.

F. Until an interim permit is issued, the department shall keep confidential all notices filed with the department by the prospective new owner of a licensed funeral establishment pursuant to this section.

G. For the purposes of this section, "regular business hours" means between the hours of 8:00 a.m. and 5:00 p.m. on any day of the week other than Saturday, Sunday or any other legal holiday or a day on which the department is authorized or obligated by law or executive order to close.

§ 32-1389 Application for change of name

The owner of a licensed funeral establishment shall submit an application on a form prescribed by the department to change the name of the funeral establishment. The application shall be subscribed under oath and shall be accompanied by the applicable fee pursuant to section 32-1309.

§ 32-1390 Application for change of location

The owner of a funeral establishment shall submit an application on a form prescribed by the department to change the location of the funeral establishment. The application shall be subscribed under oath and shall be accompanied by the applicable fee pursuant to section 32-1309. Before the department approves a request for a change of location pursuant to this section, the owner shall demonstrate that the new location meets the requirements of section 32-1382.

§ 32-1390.01 Prohibited acts; disciplinary actions; agents and employees; penalties

A. The department may deny or revoke the license of a funeral establishment or may take disciplinary action against a funeral establishment for any of the following reasons:

1. Committing fraud or misrepresentation in obtaining a license.

2. Failing to employ and designate a responsible funeral director.

3. Displaying or using a funeral establishment license at any place other than the funeral establishment to which it is issued.

4. Violating title 44, chapter 10, article 7.

5. Violating this chapter or a rule adopted pursuant to this chapter.

6. The commission of an act by an agent or an employee of the funeral establishment that violates this chapter or rules adopted pursuant to this chapter.

B. The acts or omissions of an agent or employee of a funeral establishment that violate this chapter or rules adopted pursuant to this chapter are considered to be the acts or omissions of the funeral establishment.

C. If the department finds that a funeral establishment has committed an offense listed in subsection A of this section, the department may take any of the following actions:

1. Issue a letter of censure or reprimand.

2. Impose probationary terms as the department considers necessary to protect the public health, safety and welfare and to rehabilitate or educate the licensee, including restitution to any customer or other person who was injured by a violation of this chapter or a rule adopted pursuant to this chapter.

3. Impose a civil penalty not to exceed $3,000 per violation.

4. Revoke the license of the funeral establishment pursuant to a disciplinary proceeding.

5. Suspend the license of the funeral establishment for not more than ninety days for a first offense or not more than one hundred eighty days for a second offense.

§ 32-1390.02 Disciplinary proceedings; notice

A. Article 3 of this chapter and rules adopted pursuant to article 3 of this chapter govern disciplinary proceedings brought against a funeral establishment.

B. Any notice required to be served by the department on a person who is licensed pursuant to article 2 of this chapter shall also be served by the department on each funeral establishment that employed or hired the person at the time of the conduct causing the department to serve the notice on the person. Each funeral establishment shall identify the person to whom the department shall send the notice to be served on the funeral establishment as required by this subsection.

Article 5 Prearranged Funeral Agreements

§ 32-1391.01 Powers and duties of department

A. The department shall adopt rules that:

1. Describe or define deceptive, misleading or professionally negligent practices concerning the offer or sale of prearranged funeral agreements funded by trust and the handling of these funds or accounts.

2. Implement and interpret consumer disclosure requirements of this article to provide adequate information to purchasers of prearranged funerals.

3. Prescribe funeral establishment recordkeeping requirements concerning prearranged funeral trust sales and prearranged funeral trust accounts and the handling and disposition of trust funds.

4. Define terms and develop forms and procedures to implement this article.

B. The department of health services shall enter into an intergovernmental agreement with the department of insurance and financial institutions to examine and report on prearranged funeral trust accounts of funeral establishments and to review prearranged funeral trust sales and trust account forms and procedures used by funeral establishments.

§ 32-1391.02 Prearranged funeral agreements; restrictions on sales

A. A person shall not enter into a prearranged funeral agreement other than in accordance with this article and the rules adopted pursuant to this article.

B. The department shall adopt rules that require every funeral establishment that sells prearranged funeral agreements to give a standardized written or printed price list for retention to each person who personally inquires about prearranged funeral agreements. On beginning a discussion regarding prearranged funeral agreements, a person affiliated with the funeral establishment shall present the price list to the consumer. The list shall be presented in an accurate and readable manner in order to facilitate price comparisons by consumers.

C. A prearranged funeral agreement shall be funded by insurance or trust. A funeral establishment or an agent or employee of a funeral establishment shall not accept payment for or agree to enter into any prearranged funeral agreement unless the name of a licensed funeral establishment appears on the statement of goods and services used in connection with the prearranged funeral agreement and one of the following is true:

1. If the prearranged funeral agreement is a prearranged funeral agreement funded by insurance, the funeral establishment employs or contracts with insurance producers who are licensed pursuant to title 20 to sell the prearranged funeral agreement.

2. If the prearranged funeral agreement is a prearranged funeral agreement funded by trust, the funeral establishment has been issued a prearranged funeral sales endorsement to its license allowing the funeral establishment to sell prearranged funeral agreements funded by trust.

3. If the prearranged funeral agreement is a payable on death account, the account is not under the control of the funeral establishment. A funeral establishment or an agent or employee of a funeral establishment shall not accept a deposit for a payable on death account.

§ 32-1391.03 Department of insurance and financial institutions; powers and duties; prearranged funeral trust accounts

A. The department of insurance and financial institutions shall determine all of the following in its examinations of prearranged funeral trust accounts:

1. The names and addresses of purchasers of prearranged funerals and the amount each purchaser paid to the funeral establishment.

2. The location and status of all monies received.

3. The total amount in trust accounts.

4. Whether a funeral establishment is complying with this article and rules adopted pursuant to this article.

5. Whether a funeral establishment is following recognized accounting procedures for prearranged funeral trust accounts and handling monies received from prearranged funeral sales.

B. The department of insurance and financial institutions shall:

1. Conduct examinations on a random basis or in connection with an investigation pursuant to procedures established by the department of health services.

2. Examine the prearranged funeral trust accounts of each funeral establishment at least once within the first twelve months after it begins to sell prearranged funerals and at least once every three years thereafter.

3. Include prearranged funeral trust accounts established before January 1, 1985 in its examinations.

C. The department of insurance and financial institutions may examine and investigate prearranged funeral trust accounts pursuant to title 6, chapter 1, article 3 and pursuant to the powers of the department of health services concerning prearranged funeral sales and trust accounts.

D. If the department of insurance and financial institutions determines after investigating or examining a prearranged funeral trust account that a violation of this article has occurred, it shall send a written report to the department of health services within thirty days after completion of the investigation or examination that includes an identification of the violation and any relevant documents.

E. The department of insurance and financial institutions shall assess each funeral establishment at the rate of not more than $520 per day for each examiner employed in the examination of the funeral establishment's prearranged funeral trust accounts pursuant to the requirements of this section.

§ 32-1391.04 Prearranged funeral trust accounts; books and records; inspection and examination

A. All funeral establishments and financial institutions, on request of the department of insurance and financial institutions, shall make their prearranged funeral trust account books and records available for inspection and examination by the department of insurance and financial institutions.

B. Each financial institution with trust funds deposited pursuant to this article shall at least quarterly send a copy to the department of insurance and financial institutions of each cancellation request or death certificate the financial institution has received that resulted in a withdrawal of funds from the trust account.

C. A financial institution does not have a legal duty to inquire about the disbursement of any trust funds deposited pursuant to this article if the financial institution has received the properly executed notifications or certifications required by this article.

D. A financial institution or funeral establishment operating according to the trust provisions established in this article is not considered to be in the trust business under title 6, chapter 8.

§ 32-1391.05 Prearranged funeral agreements funded by trusts; definition

A. All monies paid under a prearranged funeral agreement funded by trust, except as provided in subsection B of this section, shall be deposited, within five business days after the receipt of the monies, in a prearranged funeral trust account with a financial institution doing business in this state. The monies shall be invested either in federally insured accounts, in which case the amounts so deposited shall not exceed the amount of the deposit insurance, or in direct obligations of the United States government. Federally insured accounts are defined as accounts insured by the federal deposit insurance corporation or the national credit union administration board. If invested in direct obligations of the United States government, the maturity dates of such obligations shall not exceed three years, unless rules adopted by the department of insurance and financial institutions permit a longer period and not less than five percent of the amounts so deposited shall at all times be deposited in federally insured accounts.

B. All monies paid under a fixed price prearranged funeral agreement funded by trust shall be deposited, within twenty-one calendar days or fifteen business days, whichever is shorter after the receipt of the monies, in a prearranged funeral trust account with a financial institution doing business in this state. In investing these monies the trustee shall exercise the judgment and care of a prudent investor under the prevailing circumstances.

C. Except as provided in this article:

1. All monies deposited in a prearranged funeral trust account and all accrued interest shall be held in the trust account for and remain the property of the beneficiary during the beneficiary's life and of the beneficiary's estate after the beneficiary's death.

2. A funeral establishment or another person shall not withdraw, transfer, remove, commingle, encumber or use as collateral any monies paid to the establishment under a prearranged funeral agreement funded by trust.

3. All monies deposited and accrued interest in a prearranged funeral trust account shall be exempt from attachment, garnishment, execution and claims of creditors, receivers and trustees of the funeral establishment other than the claims of the beneficiary or the beneficiary's estate.

4. All monies deposited and accrued interest in a prearranged funeral trust account up to a total of $5,000 shall be exempt from attachment, garnishment, execution and claims of creditors, receivers and trustees of the beneficiary other than the claims of the funeral establishment.

D. A funeral establishment may direct the financial institution in which the trust monies are deposited to transfer the trust account to another financial institution after providing each participant in the trust with the name and location of the institution and the new trust account number.

E. For the purposes of this section, "prudent investor" means a person who exercises the same care and expertise as a person of ordinary prudence, diligence, discretion and judgment would exercise in the management of the property of others, not in regard to speculation, but in regard to the permanent disposition of the funds considering the probable income as well as the probable safety of the capital to be invested.

§ 32-1391.06 Service fees; prearranged funeral agreements funded by trust

A. A funeral establishment may charge an initial service fee when a person enters into a prearranged funeral agreement funded by trust of not to exceed fifteen per cent of the total amount agreed to be paid by the purchaser pursuant to the prearranged funeral agreement. If the amount to be paid by the purchaser is to be paid in installments, no more than one-half of any payment made by the purchaser may be applied to the initial service fee. If the agreement is canceled prior to the completion of the agreement, any portion of the initial service fee that has not yet been paid under the agreement is no longer due and payable to the establishment. The portion of any payment by the purchaser that is to be applied to the initial service fee shall be paid to the funeral establishment and not to the trust account.

B. A funeral establishment may charge an annual service fee of not to exceed ten per cent of the interest that has accrued on the trust funds during the preceding calendar year. After each calendar year while a prearranged funeral agreement funded by trust is in effect a financial institution may release a portion of the trust funds equal to the annual service fee on receipt of a certificate of entitlement to an annual service fee from the funeral establishment.

C. The funeral establishment may direct the financial institution to pay, from time to time, from the monies in the trust account, any taxes that have accrued by reason of the income earned from funds deposited in the trust account. The payment may be made directly to the taxing authority or to the beneficiary of the trust account on the proper showing by the beneficiary that the beneficiary has paid the taxes. A financial institution may withdraw funds from the trust account, as previously agreed in writing, to pay reasonable and necessary charges for the administrative and investment management services provided by the financial institution.

§ 32-1391.07 Cancellation; prearranged funeral agreements funded by trust

A. If a funeral establishment receives a written request from a purchaser of a prearranged funeral agreement funded by trust to terminate the agreement and refund the trust funds, the funeral establishment shall refund the remaining trust funds to the purchaser within five business days after it receives the request. A financial institution shall release the trust funds to the funeral establishment on receipt of a cancellation request signed by the purchaser and submitted by the funeral establishment. If the beneficiary is deceased, a written request to terminate the agreement may be submitted to the funeral establishment by the person designated on the prearranged funeral agreement, or if that person is not available, a request may be submitted by the person legally responsible for the beneficiary.

B. If a request to terminate the agreement is received from the purchaser within three business days after the execution of the agreement, the funeral establishment shall, within five business days after receiving the request, refund all monies paid under the agreement including the full amount of any initial service fee paid by the purchaser.

§ 32-1391.08 Prearranged funeral agreements funded by trust; death of beneficiary

A. After the death of a beneficiary of a prearranged funeral agreement funded by trust, the financial institution shall release a portion of the remaining trust funds equal to the funeral establishment's charges for funeral goods and services for the beneficiary's funeral arrangement to the funeral establishment on receipt of the beneficiary's certified death certificate and a certificate from the funeral establishment stating that it provided the requested funeral goods and services and stating the total charges for those goods and services.

B. After the death of a beneficiary of a fixed price prearranged funeral agreement funded by trust, the financial institution may release a portion of the trust funds equal to the funeral establishment's charges for the beneficiary's funeral arrangements and all then accrued interest on the trust funds to the funeral establishment on receipt of the beneficiary's certified death certificate and a certificate from the establishment stating that it provided the requested funeral goods and services, stating that the establishment agreed to fix the prices of those goods and services and the purchaser agreed to convey the accrued interest on performance of the funeral arrangements and stating the total charges for those goods and services.

C. If any trust funds remain after disbursement to the funeral establishment, the remaining funds shall be paid to the estate of the beneficiary.

D. If the funeral establishment does not provide funeral goods and services for the beneficiary's funeral arrangements within thirty days after the death of the beneficiary, all remaining trust funds shall be paid immediately to the estate of the beneficiary. This shall not be the exclusive remedy available to the purchaser or the estate of the beneficiary if there has been a breach of contract.

E. If the funeral establishment provides any funeral goods or services to the purchaser or beneficiary before the death of the beneficiary, the provision shall not constitute performance under the prearranged funeral agreement and shall not entitle the funeral establishment to any portion of the trust funds.

§ 32-1391.09 Prearranged funeral agreements funded by trust; consumer disclosures

A. Each prearranged funeral agreement funded by trust shall contain the following conspicuous notice that shall be initialed by the purchaser:

Notice to Purchaser

This prearranged funeral agreement is for the future funeral arrangements of (name of beneficiary) . The payments you make under this prearranged funeral agreement will be deposited in trust account number ____________ at the (office or branch) of the (name of financial institution) . Written notice will be mailed to you if this prearranged funeral trust account is transferred to another financial institution. That notice will include the name and location of the financial institution and the new prearranged funeral trust account number. The total monies intended to be deposited in this prearranged funeral trust account over the term of the agreement is $______. An initial service fee of $ has been charged which will be paid to this funeral establishment. If this prearranged funeral agreement is canceled, any portion of the initial service fee that has not been paid under the prearranged funeral agreement is no longer due and payable to the funeral establishment. An annual service fee of ________% of the annual accrued interest on the funds in the prearranged funeral trust account will also be charged for administrative and accounting expenses. If you wish to cancel this agreement, you must give the funeral establishment a written request to cancel before the trust funds will be refunded. If you cancel this prearranged funeral agreement within three business days after signing this prearranged funeral agreement, all monies paid, including all service fees, will be refunded to you. If remaining trust funds exist after performance of this prearranged funeral agreement, those funds will be refunded to the estate of the beneficiary. The prices of the funeral goods and services you have requested will be the prices in effect at the time of the future funeral arrangements.

Purchaser initials:________

B. A prearranged funeral agreement shall specifically itemize the funeral goods and services to be provided under the prearranged funeral agreement and any funeral, burial, cemetery or crematory expenses that are not covered under the prearranged funeral agreement.

C. Each fixed price prearranged funeral agreement funded by trust shall contain the following additional conspicuous notice that shall be initialed by the purchaser:

Fixed Price Contract Notice

This funeral establishment has agreed to charge you the prices listed in this prearranged funeral agreement for the funeral goods and services you have selected for the future funeral arrangements of (name of beneficiary) . However, you should note that this prearranged funeral agreement may be in effect for many years and that future events may affect our ability to honor this prearranged funeral agreement at the time of the funeral arrangements. If a funeral item is no longer manufactured or available at the time of the funeral arrangements, a substantially equivalent item acceptable to the person designated on this prearranged funeral agreement will be substituted. This prearranged funeral agreement should not be considered as insurance. You have agreed that the funeral establishment shall receive ________% of all interest accruing on the trust fund if it performs the future funeral arrangements as required by this prearranged funeral agreement. If the funeral establishment does not honor this prearranged funeral agreement, you may have legal remedies available to enforce this contract at the price you agreed to pay.

Purchaser initials:________

D. A fixed price prearranged funeral agreement funded by trust shall specifically itemize the funeral goods and services to be provided under the prearranged funeral agreement, the current prices to be charged for the funeral goods and services at the time of the future funeral arrangements and any burial, cemetery or crematory expenses that are not covered under the prearranged funeral agreement. If certain funeral goods to be provided under the prearranged funeral agreement are not manufactured or supplied at the time of the funeral arrangements, the funeral establishment shall provide substantially equivalent funeral goods that are acceptable to the person designated on the prearranged funeral agreement or the person legally responsible for final disposition of the beneficiary's remains. If any of these persons are unavailable, the substitution of funeral goods shall be determined by rules established by the department. A funeral establishment shall not represent or imply that the agreed to prices are guaranteed, frozen or otherwise an absolute economic certainty in the future. If a funeral establishment specifies the prices to be charged pursuant to this subsection, it shall delete the last sentence of the notice required by subsection A from the prearranged funeral agreement.

E. A prearranged funeral agreement funded by trust shall contain all terms of the prearranged funeral trust account agreement with the financial institution.

F. Each funeral establishment shall provide a copy of:

1. The prearranged funeral agreement for retention to each person who enters into a prearranged funeral agreement.

2. The funeral establishment's current price list for retention to each person who inquires about or is solicited regarding a prearranged funeral agreement.

§ 32-1391.10 Waiver of purchaser rights

The rights granted by this article to purchasers of prearranged funeral agreements funded by trust shall not be abrogated, modified or limited except as provided in this article.

§ 32-1391.11 Prearranged funeral agreements funded by trust; sales; restrictions

It is unlawful for a person to offer or sell prearranged funeral agreements funded by trust unless the person is a registered salesperson or the designated funeral director employed or otherwise engaged by a funeral establishment that has been issued a prearranged funeral sales endorsement to its establishment license.

§ 32-1391.12 Prearranged funeral sales endorsement; requirements

A. A funeral establishment that desires to offer or sell prearranged funeral agreements funded by trust shall apply to the department for an endorsement to its establishment license. The department shall issue the endorsement if the funeral establishment satisfies the following requirements:

1. Pays the prescribed application fee pursuant to section 32-1309.

2. Provides the name and address of each person owning ten percent or more of the common shares or other ownership or beneficial interest in the funeral establishment.

3. Provides the name and address, any prior names or aliases, all prior addresses for the immediately preceding seven-year period, and the date and location of birth of any responsible funeral director, manager, officer, owner, trustee or other person controlling the funeral establishment and who has been convicted of any of the crimes or has been the subject of any of the court actions described in section 10-202, subsection D, paragraph 1, subdivisions (a), (b) and (c).

4. Delivers a corporate surety bond in favor of this state, executed by a surety company authorized to do business in this state, in the amount that is prescribed by the department and that is recoverable by this state for the benefit of any person injured by a violation of this article. The department shall establish, in its rules, a separate bond requirement amount for each of the following:

(a) Funeral establishments that sold fewer than one hundred prearranged funeral agreements funded by trust during the immediately preceding calendar year.

(b) Funeral establishments that sold one hundred or more but fewer than two hundred fifty prearranged funeral agreements funded by trust during the immediately preceding calendar year.

(c) Funeral establishments that sold two hundred fifty or more prearranged funeral agreements funded by trust during the immediately preceding calendar year.

Bond amount requirements established by the department shall be at least $15,000 but not more than $50,000 for each funeral establishment.

5. Provides the full name and address of the funeral director designated by the funeral establishment to offer or sell prearranged funerals and all of the following:

(a) A recent photograph of the designated funeral director.

(b) Any prior names or aliases used by the designated funeral director.

(c) All prior addresses of the designated funeral director for the immediately preceding seven-year period.

(d) The date and location of the designated funeral director's birth.

(e) A declaration from the designated funeral director that the funeral director has not been convicted of any felony or convicted of any other crime involving dishonesty, fraud, deception, misrepresentation, embezzlement or breach of fiduciary duty in any state or federal court within the seven-year period immediately preceding the date of application.

(f) A declaration from the designated funeral director that the funeral director has not been the subject of a consumer fraud, securities fraud or civil racketeering judgment or consent order in any state or federal court within the seven-year period immediately preceding the date of application.

6. Provides information about existing prearranged funeral agreements funded by trust of the funeral establishment required by the department.

B. A prearranged funeral sales endorsement does not expire and remains valid unless either of the following occurs:

1. The department subsequently revokes the endorsement.

2. The endorsement is considered void because the licensee did not pay the application fee before the fee due date.

§ 32-1391.13 Funeral establishment sales endorsement; grounds for denial or revocation; disciplinary action

The department may deny or revoke a prearranged funeral sales endorsement or may take disciplinary action against a funeral establishment if any of the following occurs:

1. The funeral establishment fails to satisfy the requirements of section 32-1391.12.

2. The funeral establishment fails to comply with the annual report requirement prescribed in section 32-1391.16.

3. The funeral establishment or its designated funeral director violates this article or any rule adopted pursuant to this article.

4. The funeral establishment makes false or misleading statements on its initial application or on the required annual report.

5. The designated funeral director is convicted of any crime or is the subject of any court decision described in section 32-1391.12, subsection A, paragraph 5, subdivision (e) or (f).

6. The funeral establishment or its designated funeral director violates any provision of title 44, chapter 10, article 7.

§ 32-1391.16 Prearranged funeral sales and trust account activities; funeral establishments; annual report

A. On or before May 1, each funeral establishment holding a prearranged funeral sales endorsement shall file an annual report with the department concerning its prearranged funeral sales and trust account activities during the preceding calendar year.

B. The funeral establishment shall pay the annual report fee prescribed in section 32-1309 when the annual report is filed.

C. The annual report shall contain the following information sworn to by the owner or owners of the funeral establishment:

1. The names and addresses of persons who were sold prearranged funerals funded by trust by the funeral establishment during the preceding calendar year and the names of the persons who are to be the beneficiaries of the prearranged funerals.

2. The name of the salesperson who sold each prearranged funeral pursuant to paragraph 1 of this subsection.

3. The total contract amount for each purchaser listed in paragraph 1 of this subsection, the total amount of monies previously paid on each contract and the amount of monies paid by and refunded to the purchaser on each contract during the preceding calendar year.

4. The total trust funds contained in the funeral establishment's prearranged funeral trust accounts as of the end of the preceding calendar year and the total funds received in the trust accounts during that year.

5. The total amount of monies, if any, received from purchasers but not deposited in the trust accounts as of the end of the preceding calendar year, excluding initial service fees received by the funeral establishment.

6. The names and addresses of all salespersons employed or otherwise engaged by the funeral establishment during the preceding calendar year and the names and registration numbers of all salespersons terminated during that year.

7. The names and addresses of the financial institutions where the trust funds are on deposit and the account number of each account.

8. A statement of the owner of the funeral establishment that the funeral establishment has complied with this article and rules adopted pursuant to this article.

9. Other information required by the department.

D. Each funeral establishment that does not offer or sell prearranged funerals funded by trust or hold a prearranged funeral sales endorsement shall file with the department the annual report described in subsection C of this section concerning all prearranged funeral trust accounts established before January 1, 1985 and in existence during the preceding calendar year on or before May 1. For the purposes of this subsection, "prearranged funeral trust account" includes all prearranged funeral trust accounts or funds established pursuant to laws in existence before January 1, 1985.

E. The department of health services shall provide the department of insurance and financial institutions with a copy of each annual report filed pursuant to this section.

§ 32-1391.17 Exemptions

This article does not apply to:

1. The sale of cemetery lots, mausoleum or columbarium spaces, monuments, grave markers, outer burial containers, grave liners, vaults, cremation urns or similar burial or final disposition items by a licensed cemetery broker or cemetery salesperson.

2. A cremation or memorial society if the only payment to the society is a membership fee of not to exceed one hundred dollars.

§ 32-1391.18 Violation; classification; penalties and remedies

A. Except as otherwise provided by law, a person who recklessly violates this article is guilty of a class 1 misdemeanor.

B. A person who violates this article is civilly liable to any person injured as a result of the violation in an amount equal to three times the injured person's damages. A court shall award the prevailing plaintiff legal costs, including reasonable attorney fees, as determined by the court. This remedy is in addition to any other remedies provided by law.

Article 6 Cremation

§ 32-1393 Crematories; license required; employee training

A. A person shall not advertise or operate a crematory, unless the person has received a certificate of authority from the state real estate department, without first obtaining a crematory license issued by the department of health services.

B. A licensed crematory and its employees shall follow all applicable provisions of this article and rules adopted pursuant to this article. A licensed crematory shall provide appropriate training for its employees and is strictly accountable for compliance by both its licensed and unlicensed employees with this article and all applicable federal, state and local rules and regulations regarding occupational and workplace health and safety.

§ 32-1394 Crematory requirements; responsible cremationist

A crematory licensed pursuant to this article shall:

1. Maintain a retort that is operated at all times in a sanitary and professional manner, that conforms to local building and environmental codes and that provides protection for the health and safety of persons in attendance at a cremation and employees of the crematory.

2. Maintain a holding facility that is secure from access by anyone other than employees of the crematory and public officials in the performance of their official duties, that complies with applicable public health laws, that protects the health and safety of employees of the crematory and that preserves the dignity of human remains in the facility.

3. Possess all equipment and supplies that are necessary to conduct cremations in a manner that provides protection for the health and safety of persons in attendance at a cremation and employees of the crematory.

4. Employ and designate a responsible cremationist who is licensed pursuant to this article and who is trained in crematory operations to manage the daily operation of the crematory. The responsible cremationist is responsible for the crematory complying with the laws of this state and the rules of the department of health services or the rules of the state real estate department, as applicable. The crematory or the responsible cremationist shall designate a licensed cremationist to act as an interim responsible cremationist.

§ 32-1394.01 Application; qualifications for cremationist licensure; licensure requirement for responsible cremationists

A. An applicant for a cremationist license shall submit a completed application on a form prescribed by the department. The application shall be subscribed under oath and shall be accompanied by the applicable fee pursuant to section 32-1309 and any additional information that the department deems necessary.

B. An applicant for a cremationist license shall submit a completed fingerprint card and the prescribed fingerprint records check fee to the department of health services to enable the department of health services or the department of public safety to conduct a criminal records check.

C. An applicant for a cremationist license shall meet the educational requirements as prescribed by the department in rule.

D. If the department finds that the applicant meets the criteria for cremationist licensure under this section and under rules adopted by the department, the department shall issue a cremationist license.

E. A responsible cremationist shall be licensed pursuant to this article. Any other cremationist may be licensed pursuant to this article but, if not licensed, may engage only in cremation activity that is allowed without a license.

§ 32-1395 Application; qualifications for licensure

A. An applicant for a crematory license shall submit a completed application on a form prescribed by the department. If the applicant is a business entity, the entity shall direct a natural person who is an owner of the entity to submit its application. The application shall be subscribed under oath, shall contain the name of the responsible cremationist and shall be accompanied by the applicable fee pursuant to section 32-1309 and any additional information that the department deems necessary. A business entity that applies for a license pursuant to this article shall submit to the department with its application for licensure a copy of its partnership agreement, its articles of incorporation or organization or any other organizational documents required to be filed with the corporation commission.

B. A person who applies for a license pursuant to this article, or if the applicant is a business entity, all owners, partners, officers, directors and trust beneficiaries of the entity, shall submit a completed fingerprint card, criminal history background information and a fingerprint background check fee to the department.

C. The department shall inspect the premises of a crematory and investigate the character and other qualifications of all applicants for licensure pursuant to this article to determine whether the crematory and the applicants are in compliance with the requirements of this article and rules adopted by the department.

D. If the department finds that the applicant meets the criteria for licensure under this article and rules adopted by the department, the department shall issue a crematory license.

§ 32-1396.01 Display of license

A crematory shall display its license and the responsible cremationist's license at the crematory to which the license was issued in a location that enables any member of the public who enters the crematory to observe and read the license.

§ 32-1397 Nontransferability of crematory licenses; change of ownership; interim permit; definition

A. A crematory license issued by the department is not transferable or subject to sale or assignment, whether by a voluntary or involuntary process.

B. If a change of ownership of a crematory occurs, the licensee shall notify the department in writing and shall surrender the license to the department within twenty days after the change of ownership. The new owner shall also notify the department in writing within twenty days after the change of ownership and shall submit an initial application for a crematory license to the department pursuant to section 32-1395.

C. The department shall issue an interim permit to a new owner of a licensed crematory to allow the new owner to continue the operation of the crematory during the period that the new owner's license application is pending if the following conditions are met:

1. The new owner notifies the department of the change of ownership and submits an application for an interim permit and the applicable fee pursuant to section 32-1309 within three days, excluding Saturdays, Sundays and holidays, after the change takes place. Notice shall be given during regular business hours.

2. The crematory continues to meet the requirements of section 32-1394.

D. An interim permit issued by the department pursuant to this section shall be for not more than forty-five days and shall not be extended except as provided in subsection E of this section. An interim permit is a conditional permit and authorizes the holder to operate a crematory as would be allowed under a crematory license issued pursuant to this article. The holder of an interim permit is subject to the licensing rules and disciplinary proceedings prescribed in this chapter and in rules adopted pursuant to this chapter.

E. Notwithstanding subsection D of this section, for good cause shown, the department may extend an interim permit for not more than forty-five days.

F. Until an interim permit is issued, the department shall keep confidential all notices filed with the department by the prospective new owner of a licensed crematory pursuant to this section.

G. For the purposes of this section, "regular business hours" means between the hours of 8:00 a.m. and 5:00 p.m. on any day of the week other than Saturday, Sunday or any other legal holiday or a day on which the department is authorized or obligated by law or executive order to close.

§ 32-1397.01 Crematories; change of name

The owner of a crematory who desires to change the name of the crematory shall submit an application on a form prescribed by the department. The application shall be subscribed under oath and shall be accompanied by the applicable fee.

§ 32-1397.02 Crematories; change of location

The owner of a crematory shall submit an application on a form prescribed by the department to change the location of the crematory. The application shall be subscribed under oath and shall be accompanied by the applicable fee. Before the department approves a request for a change of location pursuant to this section, the owner shall demonstrate that the new location meets the requirements of section 32-1394.

§ 32-1398 Crematories; prohibited acts; disciplinary actions

A. The department may take disciplinary action against a crematory or an agent or employee of a crematory for any of the following acts:

1. Unless otherwise allowed by law, selling or offering to sell a cremation that is not arranged by a funeral establishment licensed pursuant to article 4 of this chapter. This paragraph does not prohibit charging a cremation fee.

2. Unless otherwise allowed by law, selling or offering to sell any funeral goods and services other than cremation.

3. Cremating or causing the cremation of a dead human body before obtaining certification from the county medical examiner or person performing the duties of the county medical examiner pursuant to section 11-599 and, if the deceased person did not execute a document authorizing the deceased person's cremation pursuant to section 32-1365.01, before obtaining express written consent to cremate the body from the authorizing agent pursuant to section 32-1365.02.

4. Using a retort for any purpose other than the cremation of human remains.

5. Cremating more than one dead human body at the same time in the same retort without the express written consent of the authorizing agents.

6. Introducing a second dead human body into a retort before reasonable efforts have been made to remove all bone fragments or soil of the cremated remains from the preceding cremation without the express written consent of the authorizing agents. Incidental and unavoidable residue remaining in a retort after a cremation does not constitute a violation of this paragraph.

7. Introducing the cremated human remains of a second dead human body into a processor before the termination of the processing of the cremated human remains that were previously in the processor and before reasonable efforts have been made to remove all bone fragments or soil of cremated remains from the preceding processing without the express written consent of the authorizing agents. Incidental and unavoidable residue remaining in a processor after a processing does not constitute a violation of this paragraph.

8. Retaining any accumulated human residue from any retort, processor, container or other equipment used in cremation. A crematory shall dispose of all accumulated human residue in a cemetery in accordance with the rules of the cemetery and any applicable local ordinances.

9. Selling or offering for sale anything of value obtained as a result of the cremation process.

10. Violating this chapter or a rule adopted pursuant to this chapter.

B. The acts or omissions of an agent or employee of a crematory that violate this chapter or rules adopted pursuant to this chapter are deemed to be acts or omissions of the crematory.

§ 32-1398.01 Crematories; disciplinary proceedings

Article 3 of this chapter and rules adopted pursuant to article 3 of this chapter govern disciplinary proceedings brought against a crematory.

§ 32-1399 Crematories; rules; standards of practice

The department shall adopt rules that establish standards equivalent to section 32-1307, subsection A, paragraph 4 for regulating crematories and cremation and that include the following:

1. A crematory shall develop, implement and maintain a written procedure for identifying human remains that ensures that remains can be identified from the time that a crematory accepts the delivery of the remains until the cremated remains are released to the authorizing agent. The identification procedures shall require the crematory to comply with the requirements of this section. The crematory shall not open a container containing human remains, except under the personal supervision of a licensed funeral director or embalmer or a responsible cremationist licensed pursuant to this article and trained in crematory operations to manage the daily operation of the crematory. After taking custody of human remains, a crematory shall immediately verify the identification attached to the casket or cremation container and assign an identification number. The crematory shall not accept unidentified caskets or cremation containers. The identification shall include the name and address of the deceased, the name and relationship of the authorizing agent, the name of the person or entity engaging the crematory services, a valid cremation permit issued by a government agency and a metal cremation disk containing the identification number. The disk shall be placed with the deceased during cremation.

2. If a crematory is unable to cremate the human remains immediately after taking custody, the crematory shall store the remains in a holding facility that is secure from access by anyone other than employees of the crematory and public officials in the performance of their duty and that complies with applicable public health laws, preserves the dignity of the human remains and protects the health of employees of the crematory.

3. A crematory shall not accept a casket or cremation container from which there is evidence of leakage of body fluids from the human remains and shall not hold human remains for cremation unless they are contained in an individual, closed casket or rigid cremation container of combustible material that preserves the dignity of the human remains and that protects the health of employees of the crematory. Human remains that are not embalmed shall be held by the crematory in a refrigerated holding facility that maintains human remains at or below thirty-eight degrees fahrenheit or in compliance with applicable public health laws.

4. All body prostheses, bridgework or similar items removed from the cremated remains shall be disposed of by the crematory unless an alternative disposition is agreed to in the authorization to cremate.

5. After cremation, the crematory as far as practicable shall remove visible parts of the residual of the cremation process from the retort, shall not combine the cremated or processed remains with other cremated or processed remains and shall attach the identification of the cremated or processed remains to the temporary container or urn into which the remains are placed.

6. The crematory shall place cremated or processed remains in a temporary container or urn. Extra space may be filled with clean packing material that will not combine with the cremated or processed remains. The lid or top shall be securely closed. Any cremated or processed remains that do not fit in the temporary container or urn shall be returned in a separate container or, with permission of the authorizing agent, disposed of by the crematory.

7. A crematory may dispose of cremated or processed remains in any legal manner directed by a document prepared pursuant to section 32-1365.01 or agreed to by the authorizing agent. If the authorizing agent agrees to take possession and does not take possession of the remains within thirty days after cremation or on an agreed date, the crematory shall send written notice to the last known address of the authorizing agent to take possession. Ninety days after the notification is sent or delivered, the crematory may dispose of the cremated or processed remains in any legal manner.

8. Unless the deceased has prepared a document pursuant to section 32-1365.01, the crematory shall obtain an authorization to cremate from the authorizing agent that shall contain a provision holding the crematory harmless for the disposition of unclaimed cremated or processed remains.

9. All employees of the crematory who handle dead human bodies shall use universal precautions and shall otherwise exercise reasonable care to minimize the risk of transmitting any communicable disease from a dead human body.

10. Unless the deceased has prepared a document pursuant to section 32-1365.01, employees of the crematory shall not remove a dead human body from the container in which it is delivered to the crematory without the express written consent of the authorizing agent. If, after accepting a dead human body for cremation, employees of a crematory discover that a mechanical or radioactive device is implanted in the body, an embalmer licensed pursuant to article 2 of this chapter shall remove the device from the body before cremation takes place.

11. A crematory shall keep an accurate record of all cremations performed, including dispositions of cremated and processed remains, for not fewer than five years after the cremation.

Chapter 13 Medicine and Surgery

Article 1 Arizona Medical Board

§ 32-1401 Definitions

In this chapter, unless the context otherwise requires:

1. "Active license" means a valid and existing license to practice medicine.

2. "Adequate records" means legible medical records, produced by hand or electronically, containing, at a minimum, sufficient information to identify the patient, support the diagnosis, justify the treatment, accurately document the results, indicate advice and cautionary warnings provided to the patient and provide sufficient information for another practitioner to assume continuity of the patient's care at any point in the course of treatment.

3. "Advisory letter" means a nondisciplinary letter to notify a licensee that either:

(a) While there is insufficient evidence to support disciplinary action, the board believes that continuation of the activities that led to the investigation may result in further board action against the licensee.

(b) The violation is a minor or technical violation that is not of sufficient merit to warrant disciplinary action.

(c) While the licensee has demonstrated substantial compliance through rehabilitation or remediation that has mitigated the need for disciplinary action, the board believes that repetition of the activities that led to the investigation may result in further board action against the licensee.

4. "Approved hospital internship, residency or clinical fellowship program" means a program at a hospital that at the time the training occurred was legally incorporated and that had a program that was approved for internship, fellowship or residency training by the accreditation council for graduate medical education, the association of American medical colleges, the royal college of physicians and surgeons of Canada or any similar body in the United States or Canada approved by the board whose function is that of approving hospitals for internship, fellowship or residency training.

5. "Approved school of medicine" means any school or college offering a course of study that, on successful completion, results in the degree of doctor of medicine and whose course of study has been approved or accredited by an educational or professional association, recognized by the board, including the association of American medical colleges, the association of Canadian medical colleges or the American medical association.

6. "Board" means the Arizona medical board.

7. "Completed application" means that the applicant has supplied all required fees, information and correspondence requested by the board on forms and in a manner acceptable to the board.

8. "Direct supervision" means that a physician, physician assistant licensed pursuant to chapter 25 of this title or nurse practitioner certified pursuant to chapter 15 of this title is within the same room or office suite as the medical assistant in order to be available for consultation regarding those tasks the medical assistant performs pursuant to section 32-1456.

9. "Dispense" means the delivery by a doctor of medicine of a prescription drug or device to a patient, except for samples packaged for individual use by licensed manufacturers or repackagers of drugs, and includes the prescribing, administering, packaging, labeling and security necessary to prepare and safeguard the drug or device for delivery.

10. "Doctor of medicine" means a natural person holding a license, registration or permit to practice medicine pursuant to this chapter.

11. "Full-time faculty member" means a physician who is employed full time as a faculty member while holding the academic position of assistant professor or a higher position at an approved school of medicine.

12. "Health care institution" means any facility as defined in section 36-401, any person authorized to transact disability insurance, as defined in title 20, chapter 6, article 4 or 5, any person who is issued a certificate of authority pursuant to title 20, chapter 4, article 9 or any other partnership, association or corporation that provides health care to consumers.

13. "Immediate family" means the spouse, natural or adopted children, father, mother, brothers and sisters of the doctor of medicine and the natural or adopted children, father, mother, brothers and sisters of the doctor of medicine's spouse.

14. "Letter of reprimand" means a disciplinary letter that is issued by the board and that informs the physician that the physician's conduct violates state or federal law and may require the board to monitor the physician.

15. "Limit" means taking a nondisciplinary action that alters the physician's practice or professional activities if the board determines that there is evidence that the physician is or may be mentally or physically unable to safely engage in the practice of medicine.

16. "Medical assistant" means an unlicensed person who meets the requirements of section 32-1456, has completed an education program approved by the board, assists in a medical practice under the supervision of a doctor of medicine, physician assistant or nurse practitioner and performs delegated procedures commensurate with the medical assistant's education and training but does not diagnose, interpret, design or modify established treatment programs or perform any functions that would violate any statute applicable to the practice of medicine.

17. "Medically incompetent" means a person who the board determines is incompetent based on a variety of factors, including:

(a) A lack of sufficient medical knowledge or skills, or both, to a degree likely to endanger the health of patients.

(b) When considered with other indications of medical incompetence, failing to obtain a scaled score of at least seventy-five percent on the written special purpose licensing examination.

18. "Medical peer review" means:

(a) The participation by a doctor of medicine in the review and evaluation of the medical management of a patient and the use of resources for patient care.

(b) Activities relating to a health care institution's decision to grant or continue privileges to practice at that institution.

19. "Medicine" means allopathic medicine as practiced by the recipient of a degree of doctor of medicine.

20. "Office-based surgery" means a medical procedure conducted in a physician's office or other outpatient setting that is not part of a licensed hospital or licensed ambulatory surgical center.

21. "Physician" means a doctor of medicine who is licensed pursuant to this chapter.

22. "Practice of medicine":

(a) Means the diagnosis, the treatment or the correction of or the attempt or the claim to be able to diagnose, treat or correct any and all human diseases, injuries, ailments, infirmities or deformities, physical or mental, real or imaginary, by any means, methods, devices or instrumentalities, except as the same may be among the acts or persons not affected by this chapter.

(b) Includes the practice of medicine alone or the practice of surgery alone, or both.

23. "Restrict" means taking a disciplinary action that alters the physician's practice or professional activities if the board determines that there is evidence that the physician is or may be medically incompetent or guilty of unprofessional conduct.

24. "Special purpose licensing examination" means an examination that is developed by the national board of medical examiners on behalf of the federation of state medical boards for use by state licensing boards to test the basic medical competence of physicians who are applying for licensure and who have been in practice for a considerable period of time in another jurisdiction and to determine the competence of a physician who is under investigation by a state licensing board.

25. "Teaching hospital's accredited graduate medical education program" means that the hospital is incorporated and has an internship, fellowship or residency training program that is accredited by the accreditation council for graduate medical education, the American medical association, the association of American medical colleges, the royal college of physicians and surgeons of Canada or a similar body in the United States or Canada that is approved by the board and whose function is that of approving hospitals for internship, fellowship or residency training.

26. "Teaching license" means a valid license to practice medicine as a full-time faculty member of an approved school of medicine or a teaching hospital's accredited graduate medical education program.

27. "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere:

(a) Violating any federal or state laws, rules or regulations applicable to the practice of medicine.

(b) Intentionally disclosing a professional secret or intentionally disclosing a privileged communication except as either act may otherwise be required by law.

(c) Committing false, fraudulent, deceptive or misleading advertising by a doctor of medicine or the doctor of medicine's staff, employer or representative.

(d) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by any court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

(e) Failing or refusing to maintain adequate records on a patient.

(f) Exhibiting a pattern of using or being under the influence of alcohol or drugs or a similar substance while practicing medicine or to the extent that judgment may be impaired and the practice of medicine detrimentally affected.

(g) Using controlled substances except if prescribed by another physician for use during a prescribed course of treatment.

(h) Prescribing or dispensing controlled substances to members of the physician's immediate family.

(i) Prescribing, dispensing or administering schedule II controlled substances as prescribed by section 36-2513 or the rules adopted pursuant to section 36-2513, including amphetamines and similar schedule II sympathomimetic drugs in the treatment of exogenous obesity for a period in excess of thirty days in any one year, or the nontherapeutic use of injectable amphetamines.

(j) Prescribing, dispensing or administering any controlled substance or prescription-only drug for other than accepted therapeutic purposes.

(k) Dispensing a schedule II controlled substance that is an opioid, except as provided in sections 32-1491 and 32-3248.03.

(l) Signing a blank, undated or predated prescription form.

(m) Committing conduct that the board determines is gross malpractice, repeated malpractice or any malpractice resulting in the death of a patient.

(n) Representing that a manifestly incurable disease or infirmity can be permanently cured, or that any disease, ailment or infirmity can be cured by a secret method, procedure, treatment, medicine or device, if this is not true.

(o) Refusing to divulge to the board on demand the means, method, procedure, modality of treatment or medicine used in the treatment of a disease, injury, ailment or infirmity.

(p) Having action taken against a doctor of medicine by another licensing or regulatory jurisdiction due to that doctor of medicine's mental or physical inability to engage safely in the practice of medicine or the doctor of medicine's medical incompetence or for unprofessional conduct as defined by that jurisdiction and that corresponds directly or indirectly to an act of unprofessional conduct prescribed by this paragraph. The action taken may include refusing, denying, revoking or suspending a license by that jurisdiction or a surrendering of a license to that jurisdiction, otherwise limiting, restricting or monitoring a licensee by that jurisdiction or placing a licensee on probation by that jurisdiction.

(q) Having sanctions imposed by an agency of the federal government, including restricting, suspending, limiting or removing a person from the practice of medicine or restricting that person's ability to obtain financial remuneration.

(r) Committing any conduct or practice that is or might be harmful or dangerous to the health of the patient or the public.

(s) Violating a formal order, probation, consent agreement or stipulation issued or entered into by the board or its executive director under this chapter.

(t) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any provision of this chapter.

(u) Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of medicine or if applying for privileges or renewing an application for privileges at a health care institution.

(v) Charging a fee for services not rendered or dividing a professional fee for patient referrals among health care providers or health care institutions or between these providers and institutions or a contractual arrangement that has the same effect. This subdivision does not apply to payments from a medical researcher to a physician in connection with identifying and monitoring patients for a clinical trial regulated by the United States food and drug administration.

(w) Obtaining a fee by fraud, deceit or misrepresentation.

(x) Charging or collecting a clearly excessive fee. In determining whether a fee is clearly excessive, the board shall consider the fee or range of fees customarily charged in this state for similar services in light of modifying factors such as the time required, the complexity of the service and the skill requisite to perform the service properly. This subdivision does not apply if there is a clear written contract for a fixed fee between the physician and the patient that has been entered into before the provision of the service.

(y) Committing conduct that is in violation of section 36-2302.

(z) Using experimental forms of diagnosis and treatment without adequate informed patient consent, and without conforming to generally accepted experimental criteria, including protocols, detailed records, periodic analysis of results and periodic review by a medical peer review committee as approved by the United States food and drug administration or its successor agency.

(aa) Engaging in sexual conduct with a current patient or with a former patient within six months after the last medical consultation unless the patient was the licensee's spouse at the time of the contact or, immediately preceding the physician-patient relationship, was in a dating or engagement relationship with the licensee. For the purposes of this subdivision, "sexual conduct" includes:

(i) Engaging in or soliciting sexual relationships, whether consensual or nonconsensual.

(ii) Making sexual advances, requesting sexual favors or engaging in any other verbal conduct or physical contact of a sexual nature.

(iii) Intentionally viewing a completely or partially disrobed patient in the course of treatment if the viewing is not related to patient diagnosis or treatment under current practice standards.

(bb) Procuring or attempting to procure a license to practice medicine or a license renewal by fraud, by misrepresentation or by knowingly taking advantage of the mistake of another person or an agency.

(cc) Representing or claiming to be a medical specialist if this is not true.

(dd) Maintaining a professional connection with or lending one's name to enhance or continue the activities of an illegal practitioner of medicine.

(ee) Failing to furnish information in a timely manner to the board or the board's investigators or representatives if legally requested by the board.

(ff) Failing to allow properly authorized board personnel on demand to examine and have access to documents, reports and records maintained by the physician that relate to the physician's medical practice or medically related activities.

(gg) Knowingly failing to disclose to a patient on a form that is prescribed by the board and that is dated and signed by the patient or guardian acknowledging that the patient or guardian has read and understands that the doctor has a direct financial interest in a separate diagnostic or treatment agency or in nonroutine goods or services that the patient is being prescribed if the prescribed treatment, goods or services are available on a competitive basis. This subdivision does not apply to a referral by one doctor of medicine to another doctor of medicine within a group of doctors of medicine practicing together.

(hh) Using chelation therapy in the treatment of arteriosclerosis or as any other form of therapy, with the exception of treatment of heavy metal poisoning, without:

(i) Adequate informed patient consent.

(ii) Conforming to generally accepted experimental criteria, including protocols, detailed records, periodic analysis of results and periodic review by a medical peer review committee.

(iii) Approval by the United States food and drug administration or its successor agency.

(ii) Prescribing, dispensing or administering anabolic-androgenic steroids to a person for other than therapeutic purposes.

(jj) Exhibiting a lack of or inappropriate direction, collaboration or direct supervision of a medical assistant or a licensed, certified or registered health care provider employed by, supervised by or assigned to the physician.

(kk) Knowingly making a false or misleading statement to the board or on a form required by the board or in a written correspondence, including attachments, with the board.

(ll) Failing to dispense drugs and devices in compliance with article 6 of this chapter.

(mm) Committing conduct that the board determines is gross negligence, repeated negligence or negligence resulting in harm to or the death of a patient.

(nn) Making a representation by a doctor of medicine or the doctor of medicine's staff, employer or representative that the doctor of medicine is boarded or board certified if this is not true or the standing is not current or without supplying the full name of the specific agency, organization or entity granting this standing.

(oo) Refusing to submit to a body fluid examination or any other examination known to detect the presence of alcohol or other drugs as required by the board pursuant to section 32-1452 or pursuant to a board investigation into a doctor of medicine's alleged substance abuse.

(pp) Failing to report in writing to the Arizona medical board or the Arizona regulatory board of physician assistants any evidence that a doctor of medicine or a physician assistant is or may be medically incompetent, guilty of unprofessional conduct or mentally or physically unable to safely practice medicine or to perform as a physician assistant.

(qq) As a physician who is the chief executive officer, the medical director or the medical chief of staff of a health care institution, failing to report in writing to the board that the hospital privileges of a doctor of medicine have been denied, revoked, suspended, supervised or limited because of actions by the doctor of medicine that appear to show that the doctor of medicine is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be unable to engage safely in the practice of medicine.

(rr) Claiming to be a current member of the board or its staff or a board medical consultant if this is not true.

(ss) Failing to make patient medical records in the physician's possession promptly available to a physician assistant, a nurse practitioner, a person licensed pursuant to this chapter or a podiatrist, chiropractor, naturopathic physician, osteopathic physician or homeopathic physician licensed under chapter 7, 8, 14, 17 or 29 of this title on receipt of proper authorization to do so from the patient, a minor patient's parent, the patient's legal guardian or the patient's authorized representative or failing to comply with title 12, chapter 13, article 7.1.

(tt) Prescribing, dispensing or furnishing a prescription medication or a prescription-only device as defined in section 32-1901 to a person unless the licensee first conducts a physical or mental health status examination of that person or has previously established a doctor-patient relationship. The physical or mental health status examination may be conducted through telehealth as defined in section 36-3601 with a clinical evaluation that is appropriate for the patient and the condition with which the patient presents, unless the examination is for the purpose of obtaining a written certification from the physician for the purposes of title 36, chapter 28.1. This subdivision does not apply to:

(i) A physician who provides temporary patient supervision on behalf of the patient's regular treating licensed health care professional or provides a consultation requested by the patient's regular treating licensed health care professional.

(ii) Emergency medical situations as defined in section 41-1831.

(iii) Prescriptions written to prepare a patient for a medical examination.

(iv) Prescriptions written or prescription medications issued for use by a county or tribal public health department for immunization programs or emergency treatment or in response to an infectious disease investigation, public health emergency, infectious disease outbreak or act of bioterrorism. For the purposes of this item, "bioterrorism" has the same meaning prescribed in section 36-781.

(v) Prescriptions written or antimicrobials dispensed to a contact as defined in section 36-661 who is believed to have had significant exposure risk as defined in section 36-661 with another person who has been diagnosed with a communicable disease as defined in section 36-661 by the prescribing or dispensing physician.

(vi) Prescriptions written or prescription medications issued for administration of immunizations or vaccines listed in the United States centers for disease control and prevention's recommended immunization schedule to a household member of a patient.

(vii) Prescriptions for epinephrine delivery systems that are written or dispensed for a school district or charter school to be stocked for emergency use pursuant to section 15-157 or for an authorized entity to be stocked pursuant to section 36-2226.01.

(viii) Prescriptions for glucagon written or dispensed for a school district or charter school to be stocked for emergency use pursuant to section 15-344.01.

(ix) Prescriptions written by a licensee through a telehealth program that is covered by the policies and procedures adopted by the administrator of a hospital or outpatient treatment center.

(x) Prescriptions for naloxone hydrochloride or any other opioid antagonist approved by the United States food and drug administration that are written or dispensed for use pursuant to section 36-2228 or 36-2266.

(uu) Performing office-based surgery using sedation in violation of board rules.

(vv) Practicing medicine under a false or assumed name in this state.

§ 32-1402 Board; appointment; qualifications; term; removal; compensation; immunity; report

A. The Arizona medical board is established. The board consists of twelve members, four of whom shall represent the public and eight of whom shall be actively practicing medicine. One of the four public members shall be a licensed practical nurse or a professional nurse, as defined in chapter 15 of this title, with at least five years' experience. The eight physicians must be from at least three different counties of the state. Not more than five of the board members may be from any one county. Members of the board are appointed by the governor. All appointments shall be made promptly. The governor shall make all appointments pursuant to section 38-211.

B. Each doctor of medicine who is appointed to the board shall have been a resident of this state and actively engaged in the practice of medicine as a licensed physician in this state for at least the five years before appointment.

C. The term of office of a member of the board is five years, commencing on July 1 and terminating on July 1 of the fifth year. Each member is eligible for reappointment for not more than one additional term. However, the term of office for a member of the board appointed to fill a vacancy occasioned other than by expiration of a full term is for the unexpired portion of that term. Each member may be appointed only once to fill a vacancy caused other than by expiration of a term. The governor may reappoint that member to not more than two additional full terms. Each member of the board shall continue to hold office until the appointment and qualification of that member's successor, subject to the following exceptions:

1. A member of the board, after notice and a hearing before the governor, may be removed on a finding by the governor of continued neglect of duty, incompetence, or unprofessional or dishonorable conduct, in which event that member's term shall end when the governor makes this finding.

2. The term of any member automatically ends:

(a) On death.

(b) On written resignation submitted to the board chairman or to the governor.

(c) On absence from the state for a period of more than six months.

(d) For failure to attend three consecutive meetings of the board.

(e) Five years after retirement from the active practice of medicine.

D. The board shall annually elect, from among its membership, a chairman, a vice-chairman and a secretary, who shall hold their respective offices at the pleasure of the board.

E. Board members are eligible to receive compensation in the amount of up to two hundred fifty dollars per day for each day of actual service in the business of the board, including time spent in preparation for and attendance at board meetings, and all expenses necessarily and properly incurred in attending meetings of the board.

F. Members of the board are personally immune from suit with respect to all acts done and actions taken in good faith and in furtherance of the purposes of this chapter.

G. The board shall submit a written report to the governor, the Arizona regulatory board of physician assistants and the members of the health and human services committee of the senate and the health committee of the house of representatives, or their successor committees, no later than August 31 of each year on the board's licensing and disciplinary activities for the previous fiscal year. The report must include both of the following:

1. Information regarding staff turnover that indicates whether the person was temporary, part-time or full-time and in which department or division the person worked.

2. The number of investigators who have been hired and how many of them have completed the investigator training program required by section 32-1405.

H. Public members appointed to the board may submit a separate written report to the governor by August 31 of each year setting forth their comments relative to the board's licensing and disciplinary activities for the previous fiscal year.

§ 32-1403 Powers and duties of the board; compensation; immunity; committee on executive director selection and retention

A. The primary duty of the board is to protect the public from unlawful, incompetent, unqualified, impaired or unprofessional practitioners of allopathic medicine through licensure, regulation and rehabilitation of the profession in this state. The powers and duties of the board include:

1. Ordering and evaluating physical, psychological, psychiatric and competency testing of licensed physicians and candidates for licensure as may be determined necessary by the board.

2. Initiating investigations and determining on the board's own motion whether a doctor of medicine has engaged in unprofessional conduct or provided incompetent medical care or is mentally or physically unable to engage in the practice of medicine.

3. Developing and recommending standards governing the profession.

4. Reviewing the credentials and the abilities of applicants whose professional records or physical or mental capabilities may not meet the requirements for licensure or registration as prescribed in article 2 of this chapter in order for the board to make a final determination whether the applicant meets the requirements for licensure pursuant to this chapter.

5. Disciplining and rehabilitating physicians.

6. Engaging in a full exchange of information with the licensing and disciplinary boards and medical associations of other states and jurisdictions of the United States and foreign countries and the Arizona medical association and its components.

7. Directing the preparation and circulation of educational material the board determines is helpful and proper for licensees.

8. Adopting rules regarding the regulation and the qualifications of doctors of medicine.

9. Establishing fees and penalties as provided pursuant to section 32-1436.

10. Delegating to the executive director the board's authority pursuant to section 32-1405 or 32-1451. The board shall adopt substantive policy statements pursuant to section 41-1091 for each specific licensing and regulatory authority the board delegates to the executive director.

11. Determining whether a prospective or current Arizona licensed physician has the training or experience to demonstrate the physician's ability to treat and manage opiate-dependent patients as a qualifying physician pursuant to 21 United States Code section 823(g)(2)(G)(ii).

12. Issuing registrations to administer general anesthesia and sedation in dental offices and dental clinics pursuant to section 32-1272 to doctors of medicine who have completed residency training in anesthesiology.

B. The board may appoint one of its members to the jurisdiction arbitration panel pursuant to section 32-2907, subsection B.

C. There shall be no monetary liability on the part of and no cause of action shall arise against the executive director or such other permanent or temporary personnel or professional medical investigators for any act done or proceeding undertaken or performed in good faith and in furtherance of the purposes of this chapter.

D. In conducting its investigations pursuant to subsection A, paragraph 2 of this section, the board may receive and review staff reports relating to complaints and malpractice claims.

E. The board shall establish a program that is reasonable and necessary to educate doctors of medicine regarding the uses and advantages of autologous blood transfusions.

F. The board may make statistical information on doctors of medicine and applicants for licensure under this article available to academic and research organizations.

G. The committee on executive director selection and retention is established consisting of the Arizona medical board and the chairperson and vice chairperson of the Arizona regulatory board of physician assistants. The committee is a public body and is subject to the requirements of title 38, chapter 3, article 3.1. The committee is responsible for appointing the executive director pursuant to section 32-1405. All members of the committee are voting members of the committee. The committee shall elect a chairperson and a vice chairperson when the committee meets but not more frequently than once a year. The chairperson shall call meetings of the committee as necessary, and the vice chairperson may call meetings of the committee that are necessary if the chairperson is not available. The presence of eight members of the committee at a meeting constitutes a quorum. The committee meetings may be held using communications equipment that allows all members who are participating in the meeting to hear each other. If any discussions occur in an executive session of the committee, notwithstanding the requirement that discussions made at an executive session be kept confidential as specified in section 38-431.03, the chairperson and vice chairperson of the Arizona regulatory board of physician assistants may discuss this information with the Arizona regulatory board of physician assistants in executive session. This disclosure of executive session information to the Arizona regulatory board of physician assistants does not constitute a waiver of confidentiality or any privilege, including the attorney-client privilege.

H. The officers of the Arizona medical board and the Arizona regulatory board of physician assistants shall meet twice a year to discuss matters of mutual concern and interest.

I. The board may accept and expend grants, gifts, devises and other contributions from any public or private source, including the federal government. Monies received under this subsection do not revert to the state general fund at the end of a fiscal year.

§ 32-1403.01 Licensees; profiles; required information; updates; civil penalty

A. The board shall make available to the public a profile of each licensee. The board shall make this information available through an internet website and, if requested, in writing. The profile available to the public may not contain any information received from the federal bureau of investigation relating to a federal criminal records check. The profile shall contain the following information:

1. A description of any conviction of a felony. For purposes of this paragraph, a licensee is deemed to be convicted if the licensee pled guilty, pled no contest or was found guilty by a court of competent jurisdiction.

2. A description of any conviction of a misdemeanor involving moral turpitude that results in disciplinary action. For purposes of this paragraph, a licensee is deemed to be convicted if the licensee pled guilty, pled no contest or was found guilty by a court of competent jurisdiction.

3. All final board disciplinary actions.

4. Any medical malpractice court judgments and any medical malpractice awards or settlements in which a payment is made to a complaining party that results in disciplinary action.

5. The name and location of the licensee's medical school and the date of graduation.

6. The name and location of the institution from which the licensee received graduate medical education and the date that education was completed.

7. The licensee's primary practice location.

B. Each licensee shall submit the information required pursuant to subsection A of this section each year as directed by the board. An applicant for licensure shall submit this information at the time of application. The applicant and licensee shall submit the information on a form prescribed by the board. A licensee shall submit immediately any changes in information required pursuant to subsection A, paragraphs 1, 2 and 4 of this section. The board shall update immediately its internet website to reflect changes in information relating to subsection A, paragraphs 1 through 4 of this section. The board shall update the internet website information at least annually.

C. The board shall provide each licensee with the licensee's profile on request and shall make valid and verifiable corrections to the profile on notification at any time by the licensee. A change made by a licensee to an address or telephone number is subject to the requirements of section 32-1435.

D. It is an act of unprofessional conduct for a licensee to provide erroneous information pursuant to this section. In addition to other disciplinary action, the board may impose a civil penalty of not more than one thousand dollars for each erroneous statement.

E. If the board issues a nondisciplinary order or action against a licensee, the record of the nondisciplinary order or action is available to the public but may not appear on the board's website, except that a practice limitation or restriction, and documentation relating to that action, may appear on the board's website. On request, the board shall send within five business days, either electronically or by mail, information relating to any nondisciplinary order or action against a licensee to a person requesting the information.

§ 32-1404 Meetings; quorum; committees; rules; posting

A. The board shall hold regular quarterly meetings on a date and at the time and place designated by the chairman. The board shall hold special meetings, including meetings using communications equipment that allows all members participating in the meeting to hear each other, as the chairman determines are necessary to carry out the functions of the board. The board shall hold special meetings on any day that the chairman determines are necessary to carry out the functions of the board. The vice-chairman may call meetings and special meetings if the chairman is not available.

B. The presence of seven board members at a meeting constitutes a quorum. A majority vote of the quorum is necessary for the board to take any action.

C. The chairman may establish committees from the membership of the board and define committee duties necessary to carry out the functions of the board.

D. The board may adopt rules pursuant to title 41, chapter 6 that are necessary and proper to carry out the purposes of this chapter.

E. Meetings held pursuant to subsection A of this section shall be audio and video recorded. Beginning September 2, 2014, the board shall post the video recording on the board's website within five business days after the meeting.

§ 32-1405 Executive director; compensation; duties; appeal to the board

A. Subject to title 41, chapter 4, article 4, the committee on executive director selection and retention established by section 32-1403 shall appoint an executive director of the board who shall serve at the pleasure of the committee. The executive director shall not be a board member, except that the board may authorize the executive director to represent the board and to vote on behalf of the board at meetings of the federation of state medical boards of the United States.

B. The executive director is eligible to receive compensation set by the board within the range determined under section 38-611.

C. The executive director or the executive director's designee shall:

1. Subject to title 41, chapter 4, article 4 and, as applicable, articles 5 and 6, employ, evaluate, dismiss, discipline and direct professional, clerical, technical, investigative and administrative personnel necessary to carry on the work of the board. An investigator shall complete a nationally recognized investigator training program within one year of date of hire. Until an investigator completes a training program, the investigator shall work under the supervision of an investigator who has completed a training program.

2. Set compensation for board employees within the range determined under section 38-611.

3. As directed by the board, prepare and submit recommendations for amendments to the medical practice act for consideration by the legislature.

4. Subject to title 41, chapter 4, article 4, employ medical consultants and agents necessary to conduct investigations, gather information and perform those duties the executive director determines are necessary and appropriate to enforce this chapter.

5. Issue licenses, registrations and permits to applicants who meet the requirements of this chapter.

6. Manage the board's offices.

7. Prepare minutes, records, reports, registries, directories, books and newsletters and record all board transactions and orders.

8. Collect all monies due and payable to the board.

9. Pay all bills for authorized expenditures of the board and its staff.

10. Prepare an annual budget.

11. Submit a copy of the budget each year to the governor, the speaker of the house of representatives and the president of the senate.

12. Initiate an investigation if evidence appears to demonstrate that a physician may be engaged in unprofessional conduct or may be medically incompetent or mentally or physically unable to safely practice medicine.

13. Issue subpoenas if necessary to compel the attendance and testimony of witnesses and the production of books, records, documents and other evidence.

14. Provide assistance to the attorney general in preparing and sign and execute disciplinary orders, rehabilitative orders and notices of hearings as directed by the board.

15. Enter into contracts for goods and services pursuant to title 41, chapter 23 that are necessary to carry out board policies and directives.

16. Execute board directives.

17. Manage and supervise the operation of the Arizona regulatory board of physician assistants.

18. Issue licenses to physician assistant applicants who meet the requirements of chapter 25 of this title.

19. Represent the board with the federal government, other states or jurisdictions of the United States, this state, political subdivisions of this state, the news media and the public.

20. On behalf of the Arizona medical board, enter into stipulated agreements with persons under the jurisdiction of either the Arizona medical board or the Arizona regulatory board of physician assistants for the treatment, rehabilitation and monitoring of chemical substance abuse or misuse.

21. Review all complaints filed pursuant to section 32-1451. The executive director shall submit all medical complaints alleging harm as a result of patient care to a medical consultant for review. The executive director shall submit to the medical consultant only those medical complaints that involve a standard of care issue and that require medical training and expertise to determine whether a violation has occurred. If delegated by the board, the executive director may also dismiss a complaint if the complaint is without merit. The executive director shall not dismiss a complaint if a court has entered a medical malpractice judgment against a physician. The executive director shall submit a report of the cases dismissed with the complaint number, the name of the physician and the investigation timeline to the board for review at its regular board meetings.

22. If delegated by the board, directly refer cases to a formal hearing.

23. If delegated by the board, close cases resolved through mediation.

24. If delegated by the board, issue advisory letters.

25. If delegated by the board, enter into a consent agreement if there is evidence of danger to the public health and safety.

26. If delegated by the board, grant uncontested requests for inactive status and cancellation of a license pursuant to sections 32-1431 and 32-1433.

27. If delegated by the board, refer cases to the board for a formal interview.

28. Perform all other administrative, licensing or regulatory duties required by the board.

29. Disseminate any information received from the office of ombudsman-citizens aide to the board at its regular board meetings.

D. Medical consultants and agents appointed pursuant to subsection C, paragraph 4 of this section are eligible to receive compensation determined by the executive director in an amount not to exceed two hundred dollars for each day of service.

E. A person who is aggrieved by an action taken by the executive director pursuant to subsection C, paragraphs 21 through 27 of this section or section 32-1422, subsection E may request the board to review that action by filing with the board a written request within thirty days after that person is notified of the executive director's action by personal delivery or, if the notification is mailed to that person's last known residence or place of business, within thirty-five days after the date on the notification. At the next regular board meeting, the board shall review the executive director's action. On review, the board shall approve, modify or reject the executive director's action.

§ 32-1406 Arizona medical board fund

(L24, Ch. 222, sec. 15. Eff. until 7/1/28)

A. The Arizona medical board fund is established. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies collected under the provisions of this chapter in the state general fund and deposit the remaining eighty-five percent in the Arizona medical board fund.

B. Monies deposited in the fund are subject to section 35-143.01.

§ 32-1406 (Version 2) Arizona medical board fund

(L24, Ch. 222, sec. 16. Eff. 7/1/28)

A. The Arizona medical board fund is established. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies collected under the provisions of this chapter in the state general fund and deposit the remaining ninety percent in the Arizona medical board fund.

B. Monies deposited in the fund are subject to section 35-143.01.

§ 32-1407 Jurisdiction arbitration panel

A. When the board receives a complaint concerning a physician who is also licensed pursuant to chapter 29 of this title, the board shall immediately notify the board of homeopathic and integrated medicine examiners. If the boards disagree and if both boards continue to claim jurisdiction over the dual licensee, an arbitration panel shall decide jurisdiction pursuant to section 32-2907, subsections B, C, D and E.

B. If the licensing boards decide without resorting to arbitration which board or boards shall conduct the investigation, the board or boards conducting the investigation shall transmit all investigation materials, findings and conclusions to the other board with which the physician is licensed. The board or boards shall review this information to determine if disciplinary action shall be taken against the physician.

§ 32-1408 Preceptorship awareness campaign; definitions

A. The board shall develop a preceptorship awareness campaign that educates medical professionals who are licensed pursuant to this chapter on how to become and the benefits of being a medical preceptor for students.

B. For the purposes of this section:

1. "Medical preceptor" means a medical professional who is licensed pursuant to this chapter and who maintains an active practice in this state.

2. "Preceptorship":

(a) Means a mentoring experience in which a medical preceptor provides a program of personalized instruction, training and supervision to a student, which may include educating the student about dispensing drugs and devices, to enable the student to obtain a medical professional degree to become licensed pursuant to this chapter.

(b) Does not include mentoring for medical services that are prescribed in section 36-2301.01, subsection C, paragraph 1.

3. "Student" means an individual who is matriculating at the graduate level at an accredited institution of higher education in this state and who is seeking a medical professional degree to become licensed pursuant to this chapter.

Article 2 Licensing

§ 32-1421 Exemptions from licensing requirements

A. This article does not apply to any person while engaged in:

1. The provision of medical assistance in case of an emergency.

2. The administration of family remedies including the sale of vitamins, health foods or health food supplements or any other natural remedies, except drugs or medicines for which an authorized prescription is required by law.

3. The practice of religion, treatment by prayer or the laying on of hands as a religious rite or ordinance.

4. The practice of any of the healing arts of and by Indian tribes in this state.

5. The lawful practice of any of the healing arts to the extent authorized by a license issued by this state.

6. Activities or functions that do not require the exercise of a doctor of medicine's judgment for their performance, are not in violation of the laws of this state and are usually or customarily delegated by a doctor of medicine under the doctor's direction or supervision or are performed in accordance with the approval of a committee of physicians in a licensed health care institution.

7. The official duties of a medical officer in the armed forces of the United States, the United States department of veterans affairs or the United States public health service or their successor agencies, if the duties are restricted to federal lands.

8. Any act, task or function competently performed by a physician assistant in the proper performance of the physician assistant's duties.

9. The emergency harvesting of donor organs by a doctor of medicine or team of doctors of medicine licensed to practice medicine in another state or country for use in another state or country.

B. This article does not apply to:

1. A doctor of medicine residing in another jurisdiction who is authorized to practice medicine in that jurisdiction, if the doctor engages in actual single or infrequent consultation with a doctor of medicine licensed in this state and if the consultation regards a specific patient or patients.

2. A doctor of medicine who is licensed to practice in another jurisdiction if the doctor engages in the practice of medicine that is limited to patients with whom the doctor has an already established doctor-patient relationship and who reside outside this jurisdiction when both the doctor and the patient are physically in this state for not more than sixty consecutive days. For the purposes of this paragraph, "patient" means a person who is not a resident of this state and who is an athlete or a professional entertainer.

§ 32-1422 Basic requirements for granting a license to practice medicine; credentials verification

A. An applicant for a license to practice medicine in this state pursuant to this article shall meet each of the following basic requirements:

1. Graduate from an approved school of medicine or receive a medical education that the board deems to be of equivalent quality.

2. Successfully complete an approved twelve-month hospital internship, residency or clinical fellowship program.

3. Have the physical and mental capability to safely engage in the practice of medicine.

4. Have a professional record that indicates that the applicant has not committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee under this chapter.

5. Not have had a license to practice medicine revoked by a medical regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter.

6. Not be currently under investigation, suspension or restriction by a medical regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter. If the applicant is under investigation by a medical regulatory board in another jurisdiction, the board shall suspend the application process and may not issue or deny a license to the applicant until the investigation is resolved.

7. Not have surrendered a license to practice medicine in lieu of disciplinary action by a medical regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction and that constitutes unprofessional conduct pursuant to this chapter.

8. Pay all fees required by the board.

9. Complete the application as required by the board.

10. Complete a training unit as prescribed by the board relating to the requirements of this chapter and board rules. The applicant shall submit proof with the application form of having completed the training unit.

11. Have submitted directly to the board, electronically or by hard copy, verification of the following:

(a) Licensure from every state in which the applicant has ever held a medical license.

(b) All medical employment for the five years preceding application. If the applicant is employed by a hospital or medical group or organization, the board shall accept the confirmation required under this subdivision from the applicant's employer. For the purposes of this subdivision, medical employment includes all medical professional activities.

12. Have submitted a full set of fingerprints to the board for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

B. The board may require the submission of credentials or other evidence, written and oral, and make any investigation it deems necessary to adequately inform itself with respect to an applicant's ability to meet the requirements prescribed by this section, including a requirement that the applicant for licensure undergo a physical examination, a mental evaluation and an oral competence examination and interview, or any combination thereof, as the board deems proper.

C. In determining if the requirements of subsection A, paragraph 4 of this section have been met, if the board finds that the applicant committed an act or engaged in conduct that would constitute grounds for disciplinary action, the board shall determine to its satisfaction that the conduct has been corrected, monitored and resolved. If the matter has not been resolved, the board shall determine to its satisfaction that mitigating circumstances exist that prevent its resolution.

D. In determining if the requirements of subsection A, paragraph 6 of this section have been met, if another jurisdiction has taken disciplinary action against an applicant, the board shall determine to its satisfaction that the cause for the action was corrected and the matter resolved. If the matter has not been resolved by that jurisdiction, the board shall determine to its satisfaction that mitigating circumstances exist that prevent its resolution.

E. The board may delegate authority to the executive director to deny licenses if applicants do not meet the requirements of this section.

F. Any credential information required to be submitted to the board pursuant to this article must be submitted, electronically or by hard copy, from the primary source where the document or information originated, except that the board may accept primary-source verified credentials from a credentials verification service approved by the board. The board is not required to verify any documentation or information received by the board from a credentials verification service that has been approved by the board. If an applicant is unable to provide a document or information from the primary source due to no fault of the applicant, the executive director shall forward the issue to the full board for review and determination. The board shall adopt rules establishing the criteria that must be met in order to waive a documentation requirement of this article.

§ 32-1422.01 Expedited licensure; medical licensure compact; fingerprinting

Beginning September 1, 2017, applicants for expedited licensure pursuant to section 32-3241 shall submit a full set of fingerprints to the board for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation. Communication between the board and the interstate medical licensure compact commission regarding verification of physician eligibility for licensure under the medical licensure compact may not include any information received from the federal bureau of investigation relating to a state and federal criminal records check performed for the purposes of section 32-3241, section 5, subsection B, paragraph 2.

§ 32-1423 Additional requirements for students graduating from an unapproved allopathic school of medicine

In addition to the basic requirements for licensure prescribed in section 32-1422, any applicant who has graduated from an unapproved school of medicine shall meet each of the following requirements:

1. Be able to read, write, speak, understand and be understood in the English language.

2. Hold a standard certificate issued by the educational commission for foreign medical graduates, complete a fifth pathway program as provided in section 32-1424, subsection A, or complete thirty-six months as a full-time assistant professor or in a higher position in an approved school of medicine.

3. Be enrolled in an approved twenty-four month hospital internship, residency or clinical fellowship program, in addition to the twelve months required in section 32-1422, subsection A, paragraph 2, for a total of thirty-six months of training unless the applicant successfully completed a fifth pathway program as provided by section 32-1424 or has served as a full-time assistant professor or in a higher position in an approved school of medicine for a total of thirty-six months.

§ 32-1424 Fifth pathway program; licensure

A. In addition to the requirements for licensure prescribed in sections 32-1422 and 32-1423, an applicant for licensure under this article who attended a foreign school of medicine and successfully completed all the formal requirements to receive the degree of doctor of medicine except internship or social service, and is accordingly not eligible for certification by the educational council for foreign medical graduates, may be considered for licensure under this chapter if the applicant meets the following conditions:

1. Satisfactorily completes an approved fifth pathway program of one academic year of supervised clinical training under the direction of an approved school of medicine in the United States.

2. Successfully completes an approved twenty-four month internship, residency or clinical fellowship program upon completion of the fifth pathway program.

B. A document granted by a foreign school of medicine signifying completion of all the formal requirements for graduation from such foreign medical school except internship or social service training, or both, along with certification by the approved school of medicine in the United States of successful completion of the fifth pathway program is deemed the equivalent of a degree of doctor of medicine for purposes of licensure and practice as a physician in this state.

§ 32-1425 Initial licensure

A. An applicant who meets the applicable requirements provided in section 32-1422, 32-1423 or 32-1424, has passed steps one and two of the United States medical licensing examination or one of the examination combinations prescribed in section 32-1426, subsection A, paragraph 6, subdivision (c), items (i) and (ii), has paid the fees required by this chapter and has filed a completed application found by the board to be true and correct is eligible for licensure as a doctor of medicine upon successful passage of step three of the United States medical licensing examination with a scaled score of at least seventy-five if the applicant has passed all three steps within a seven year period.

B. An applicant for licensure applying pursuant to section 32-1422, 32-1423 or 32-1424 may take the examination only after successfully completing six months of a board approved hospital internship, residency or clinical fellowship or fifth pathway program or serving as a full-time assistant professor or in a higher position in a board approved school of medicine in this state.

C. The board shall not grant a license until the applicant meets the requirements for licensure pursuant to this chapter.

§ 32-1426 Licensure by endorsement

A. An applicant who is licensed in another jurisdiction or whose license under this chapter has been revoked or surrendered or has expired and who meets the applicable requirements prescribed in section 32-1422, 32-1423 or 32-1424, has paid the fees required by this chapter and has filed a completed application found by the board to be true and correct is eligible to be licensed to engage in the practice of medicine in this state through endorsement under any one of the following conditions:

1. The applicant is certified by the national board of medical examiners or its successor entity as having successfully passed all three parts of the United States medical licensing examination or its successor examination.

2. The applicant has successfully passed a written examination that the board determines is equivalent to the United States medical licensing examination and that is administered by any state, territory or district of the United States, a province of Canada or the medical council of Canada.

3. The applicant successfully completed the three-part written federation of state medical boards licensing examination administered by any jurisdiction before January 1, 1985 and obtained a weighted grade average of at least seventy-five on the complete examination. Successful completion of the examination shall be achieved in one sitting.

4. The applicant successfully completed the two component federation licensing examination administered after December 1, 1984 and obtained a scaled score of at least seventy-five on each component within a five-year period.

5. The applicant's score on the United States medical licensing examination was equal to the score required by this state for licensure pursuant to section 32-1425.

6. The applicant successfully completed one of the following combinations of examinations:

(a) Parts one and two of the national board of medical examiners examination, administered either by the national board of medical examiners or the educational commission for foreign medical graduates, with a successful score determined by the national board of medical examiners and passed either step three of the United States medical licensing examination or component two of the federation licensing examination with a scaled score of at least seventy-five.

(b) The federation licensing examination component one examination and the United States medical licensing step three examination with scaled scores of at least seventy-five.

(c) Each of the following:

(i) Part one of the national board of medical examiners licensing examination with a passing grade as determined by the national board of medical examiners or step one of the United States medical licensing examination with a scaled score of at least seventy-five.

(ii) Part two of the national board of medical examiners licensing examination with a passing grade as determined by the national board of medical examiners or step two of the United States medical licensing examination with a scaled score of at least seventy-five.

(iii) Part three of the national board of medical examiners licensing examination with a passing grade as determined by the national board of medical examiners or step three of the United States medical licensing examination with a scaled score of at least seventy-five or component two of the federation licensing examination with a scaled score of at least seventy-five.

B. The board may require an applicant seeking licensure by endorsement based on successful passage of a written examination or combination of examinations, the most recent of which precedes by more than ten years the application for licensure by endorsement in this state, to take and pass a special purpose licensing examination to assist the board in determining the applicant's ability to safely engage in the practice of medicine. The board may also conduct a records review and physical and psychological assessments, if appropriate, and may review practice history to determine the applicant's ability to safely engage in the practice of medicine.

§ 32-1427 Application; hearing on deficiencies in application; interview; probationary license

A. Each applicant for licensure shall submit a completed application as prescribed by the board together with the fee prescribed in this article. The board may require the submission of any evidence, credentials and other proof necessary for it to verify and determine if the applicant meets the requirements for licensure.

B. Each application submitted pursuant to this section shall contain the oath of the applicant that:

1. All of the information contained in the application and accompanying evidence or other credentials submitted are true.

2. The credentials submitted with the application were procured without fraud or misrepresentation or any mistake of which the applicant is aware and that the applicant is the lawful holder of the credentials.

3. The applicant authorizes the release of any information from any source requested by the board necessary for initial and continued licensure in this state.

C. All applications, completed or otherwise, together with all attendant evidence, credentials and other proof submitted with the applications are the property of the board.

D. The board, promptly and in writing, shall inform an applicant of any deficiency in the application that prevents the application from being processed.

E. On request the board shall grant an applicant who disagrees with the statement of deficiency a hearing before the board at its next regular meeting if there is time at that meeting to hear the matter. The board shall not delay this hearing beyond one regularly scheduled meeting. At any hearing granted pursuant to this subsection, the burden of proof is on the applicant to demonstrate that the alleged deficiencies do not exist.

F. Applications are considered withdrawn:

1. On the applicant's written request.

2. Except for good cause shown, if the applicant does not appear for an interview with the board.

3. If the applicant does not submit within one year of notification the necessary evidence, credentials or other proof identified by the board as being deficient pursuant to subsection D of this section.

G. The board may deny a license to an applicant who does not meet the requirements of this article.

H. If an applicant does not meet the requirements of section 32-1422, subsection A, paragraph 3 the board may issue a license subject to any of the following probationary conditions:

1. Require the licensee's practice to be supervised by another physician.

2. Restrict the licensee's practice.

3. Require the licensee to continue medical or psychiatric treatment.

4. Require the licensee to participate in a specified rehabilitation program.

5. Require the licensee to abstain from alcohol and other drugs.

I. If the board offers a probationary license to an applicant pursuant to subsection H of this section, it shall notify the applicant in writing of the following:

1. The applicant's specific deficiencies.

2. The probationary period.

3. The applicant's right to reject the terms of probation.

4. If the applicant rejects the terms of probation, the applicant's right to a hearing on the board's denial of the application.

§ 32-1428 Pro bono registration

A. The board may issue a pro bono registration to allow a doctor who is not a licensee to practice in this state for a total of up to sixty days each calendar year if the doctor:

1. Holds an active and unrestricted license to practice medicine in a state, territory or possession of the United States or an inactive license pursuant to section 32-1431.

2. Has never had the license revoked or suspended.

3. Is not the subject of an unresolved complaint.

4. Applies for registration on a yearly basis as prescribed by the board.

5. Agrees to render all medical services without accepting a fee or salary or performs only initial or follow-up examinations at no cost to the patient and the patient's family through a charitable organization.

B. The sixty days of practice prescribed pursuant to subsection A of this section may be performed consecutively or cumulatively during each calendar year.

C. For the purpose of meeting the requirements of subsection A of this section, an applicant shall provide the board the name of each state in which the person is licensed or has held a license and the board shall verify with the applicable regulatory board of each state that the applicant is licensed or has held a license, has never had a license revoked or suspended and is not the subject of an unresolved complaint. The board may accept the verification of the information required by subsection A, paragraphs 1, 2 and 3 of this section from each of the other state's regulatory board either electronically or by hard copy.

§ 32-1429 Locum tenens registration

A. The board may issue a registration to allow a doctor of medicine who is not a licensee to provide locum tenens medical services to substitute for or temporarily assist a doctor of medicine who holds an active license pursuant to this chapter or a doctor of osteopathy who holds an active license pursuant to chapter 17 of this title under the following conditions:

1. The applicant holds an active license to practice medicine issued by a state, district, territory or possession of the United States.

2. The applicant provides on forms and in a manner prescribed by the board proof that the applicant meets the applicable requirements of section 32-1422, 32-1423 or 32-1424.

3. The license of the applicant from the jurisdiction in which the applicant regularly practices medicine is current and unrestricted and has not been revoked or suspended for any reason and there are no unresolved complaints or formal charges filed against the applicant with any licensing board.

4. The doctor of medicine or doctor of osteopathy for whom the applicant for registration under this section is substituting or assisting provides to the board a written request for locum tenens registration of the applicant.

5. The applicant pays the fee prescribed under section 32-1436.

B. Locum tenens registration granted pursuant to this section is valid for a period of one hundred eighty consecutive days. A doctor of medicine is eligible to apply for and be granted locum tenens registration once every three years.

§ 32-1430 License renewal; expiration

A. Except as provided in section 32-4301, each person holding an active license to practice medicine in this state shall renew the license every other year on or before the licensee's birthday and shall pay the fee required by this article, accompanied by a completed renewal form. The board shall provide the renewal form online and, on request, shall mail the form to the licensee. A licensee who does not renew an active license as required by this subsection on or before thirty days after the licensee's birthday must also pay a penalty fee as required by this article for late renewal. A licensee's license automatically expires if the licensee does not renew an active license within four months after the licensee's birthday. A person who practices medicine in this state after that person's active license has expired is in violation of this chapter.

B. A person renewing an active license to practice medicine in this state shall provide to the board as part of the renewal process a report of disciplinary actions, restrictions or any other action placed on or against that person's license or practice by another state licensing or disciplinary board or an agency of the federal government. This action may include denying a license or failing the special purpose licensing examination. The report shall include the name and address of the sanctioning agency or health care institution, the nature of the action taken and a general statement of the charges leading to the action taken.

C. The licensee shall submit proof with the renewal form of having completed a training unit as prescribed by the board relating to the requirements of this chapter and board rules.

D. A person whose license has expired may reapply for a license to practice medicine as provided in this chapter.

§ 32-1431 Inactive license; application; practice prohibitions

A. A person holding a current active license to practice medicine in this state may request an inactive license from the board if both of the following are true:

1. The licensee is not presently under investigation by the board.

2. The board has not commenced any disciplinary proceeding against the licensee.

B. The board may grant an inactive license and waive the renewal fees and requirements for continuing medical education specified by section 32-1434 if the licensee provides evidence to the board's satisfaction that the licensee has totally retired from the practice of medicine in this state and any state, territory and district of the United States or any foreign country and has paid all of the fees required by this chapter before the request. The board may grant pro bono registration pursuant to section 32-1428 to a physician who holds an inactive license under this section.

C. During any period in which a medical doctor holds an inactive license, that person shall not engage in the practice of medicine or continue to hold or maintain a drug enforcement administration controlled substances registration certificate, except as permitted by a pro bono registration pursuant to section 32-1428. Any person who engages in the practice of medicine while on inactive license status is considered to be a person who practices medicine without a license or without being exempt from licensure as provided in this chapter.

D. The board may convert an inactive license to an active license if the applicant pays the renewal fee and presents evidence satisfactory to the board that the applicant possesses the medical knowledge and is physically and mentally able to safely engage in the practice of medicine. The board may require any combination of physical examination, psychiatric or psychological evaluation or successful passage of the special purpose licensing examination or interview it finds necessary to assist it in determining the ability of a physician holding an inactive license to return to the active practice of medicine.

§ 32-1432 Teaching license

A. A board approved school of medicine in this state or a teaching hospital's accredited graduate medical education program in this state may invite a doctor of medicine to provide and promote professional education through lectures, clinics or demonstrations. The doctor of medicine is prohibited from opening an office or designating a place to meet patients or receive calls relating to the practice of medicine in this state outside of the facilities and programs of the approved school or teaching hospital.

B. To receive a teaching license, the doctor of medicine shall:

1. Complete an application as prescribed by the board.

2. Pay all required fees.

3. Meet the basic requirements of section 32-1422 except for those relating to completing an approved hospital internship, residency or clinical fellowship program.

C. A teaching license is limited to a one year period. The doctor of medicine may reapply annually for no more than a total of four years. With each reapplication the doctor of medicine must submit all required fees and a petition from the school or teaching hospital asking the board for continuation of the teaching license.

D. The holder of a teaching license is not exempt from the requirements of this chapter with the exception of the training and examination requirements of this article.

E. A doctor of medicine holding a current teaching license at an approved school of medicine may convert that license into an active license by filing an application and meeting all applicable requirements of this article.

§ 32-1432.01 Education teaching permit

A. The dean of a board approved school of medicine or the chairman of a teaching hospital's accredited graduate medical education program may invite a doctor of medicine who is not licensed in this state to demonstrate and perform medical procedures and surgical techniques for the sole purpose of promoting professional education for students, interns, residents, fellows and doctors of medicine in this state.

B. The chairman or dean of the inviting institution shall provide to the board evidence that an applicant for an educational permit has malpractice insurance in an amount that meets the requirements of the institution and that the applicant accepts all responsibility and liability for the procedures he performs within the scope of his permit. In a letter to the board, the chairman or the dean of the inviting institution shall outline the procedures and techniques that the doctor of medicine shall perform or demonstrate and the dates that this activity will occur. The letter shall also include a summary of the doctor's of medicine educational and professional background and be accompanied by the fee required pursuant to section 32-1436.

C. The inviting institution shall submit the fees and documents required pursuant to subsection B of this section no later than two weeks before the scheduled activity.

D. The board or its staff shall issue an educational teaching permit for no more than five days for each approved activity.

§ 32-1432.02 Training permit; short-term permits; discipline

A. The board shall grant a one year renewable training permit to a person participating in a teaching hospital's accredited internship, residency or clinical fellowship training program to allow that person to function only in the supervised setting of that program. Before the board issues the permit, the person shall comply with the applicable registration requirements of this article and pay the fee prescribed in section 32-1436.

B. If a person who is participating in a teaching hospital's accredited internship, residency or clinical fellowship program must repeat or make up time in the program due to resident progression or other issues, the board may grant that person a training permit if requested to do so by the program's director of medical education or a person who holds an equivalent position. The permit limits the permittee to practicing only in the supervised setting of that program.

C. The board shall grant a training permit to a person who is not licensed in this state and who is participating in a short-term training program of four months or less conducted in an approved school of medicine or a hospital that has an accredited hospital internship, residency or clinical fellowship program in this state for the purpose of continuing medical education. Before the board issues the permit, the person shall comply with the applicable registration requirements of this article and pay the fee prescribed in section 32-1436.

D. A permittee is subject to the disciplinary regulation of article 3 of this chapter.

§ 32-1432.03 Training permits; approved schools

The executive director may grant a one year training permit to a person who:

1. Participates in a program at an approved school of medicine or a hospital that has an approved hospital internship, residency or clinical fellowship program if the purpose of the program is to exchange technical and educational information.

2. Pays the prescribed fee.

3. Submits a written statement from the dean of the approved school of medicine or from the chairman of a teaching hospital's accredited graduate medical education program that:

(a) Includes a request for the permit and describes the purpose of the exchange program.

(b) Specifies that the host institution will provide liability coverage.

(c) Provides the name of a doctor of medicine who will serve as the preceptor of the host institution and provide appropriate supervision of the participant.

(d) States that the host institution has advised the participant that the participant may serve as a member of an organized medical team but shall not practice medicine independently and that this training does not accrue toward postgraduate training requirements for licensure.

§ 32-1432.04 Medical graduate transitional training permits; requirements; definitions

A. The board or, if delegated, the executive director of the board shall grant a one-year transitional training permit to a graduate of an allopathic school of medicine who is not otherwise eligible to apply for a license to practice or a training permit pursuant to section 32-1432.02 or 32-1432.03 in this state if the applicant meets both of the following conditions:

1. Within a two-year period immediately preceding initial application for a transitional training permit, was either:

(a) Qualified to submit, and submitted, a valid application to an accredited internship or residency program but was not selected for a position.

(b) Selected for a position described in subdivision (a) of this paragraph but ended participation in the program before completion for a reason that would not be considered grounds for disciplinary action pursuant to section 32-1451.

2. Successfully completed steps one and two of the United States medical licensing examination or equivalent exams.

B. The transitional training permit may be renewed for two additional one-year periods if the permittee, in the year preceding an application for renewal, submits complete and valid applications to at least three accredited primary care internship or residency programs and is not selected for an internship or residency position. The permittee shall provide the board with written documentation of the internship or residency program applications and the nonselections. A permittee may not hold a permit for an aggregate time period of more than thirty-six months.

C. The transitional training permit limits the permittee to function only under the supervision of a qualified physician within the setting of an eligible entity, which includes the following if located in this state:

1. A hospital or behavioral health facility that is licensed pursuant to title 36, chapter 4.

2. A patient care facility operated by or for any federally recognized American Indian tribe, the Indian health service, the United States veterans administration, a prison or a school or university.

3. A community health center or a federally qualified health center.

4. A private office or clinic where a supervising qualified physician practices and that is not a pain management clinic as defined in section 36-448.01.

D. An eligible entity contracting with or employing a permittee shall:

1. Provide to the permittee, in collaboration with the supervising qualified physician, ongoing clinical training related to the services that may be delegated to the permittee by the supervising qualified physician.

2. Be responsible, along with the supervising qualified physician, for all aspects of the performance of a permittee.

3. Ensure that the health care tasks performed by a permittee are within the permittee's scope of medical training, experience and competence and have been properly delegated and supervised by a qualified physician.

4. Ensure that during the permittee's first six months of full-time practice, all clinical encounters performed by the permittee are under the direct supervision of the supervising qualified physician. Subsequent encounters performed by the permittee after the initial six-month period may be under indirect supervision with direct supervision immediately available from the supervising qualified physician.

5. Ensure that all qualified physician supervision is documented.

6. Ensure that in all clinical or other patient encounters the permittee is clearly identified as a medical graduate in training.

7. Define the employment or contractual relationship with the permittee, including terms of compensation and benefits, billing and reimbursement and general and professional liability coverage.

8. Establish and document a process for evaluating the permittee's performance that includes a review by the supervising qualified physician of all medical records related to the clinical encounters performed by the permittee.

E. The supervising qualified physician may delegate to a permittee the performance of health care tasks that are of a nature typically delegated in an accredited internship or residency program, including the ability to provide delegated telehealth services that are of a similar nature, if all other conditions prescribed in this section are met.

F. Before employing or contracting with a permittee, an eligible entity shall notify the department of health services on a form prescribed by the department, or on an equivalent form from the entity, of all the following information:

1. The types and extent of medical training the entity plans to provide to the permittee.

2. The names of the qualified physicians who will supervise the permittee and the types of health care tasks that may be delegated to the permittee by those supervising qualified physicians.

G. An eligible entity shall post on its public website and submit to the department an annual report that includes all of the following:

1. The number of permittees and supervising qualified physicians employed by or contracted with the entity.

2. The length of time each permittee and supervising qualified physician has been employed by or contracted with the entity.

3. The total number of hours of medical education provided to each permittee.

4. The total number of hours of clinical care provided by each permittee.

5. The number of permittees who obtained a match with an accredited internship or residency program.

H. Before supervising a permittee, a qualified physician shall notify the board in writing of the qualified physician's agreement to serve as a supervising qualified physician. The notification shall include the name of the permittee and the name and location of the eligible entity at which the supervision will occur.

I. Before the board issues or renews a training permit under this section, the applicant or renewing permittee shall comply with the applicable registration requirements of this article and pay the fee, which shall be the same as the fee prescribed for an approved internship pursuant to section 32-1436.

J. This section does not require any eligible entity or qualified physician to establish a program to employ or contract with permittees as described in this section or require any qualified physician to assume supervision responsibilities for a permittee.

K. A permittee under this section:

1. Is subject to the disciplinary regulation of article 3 of this chapter.

2. Per one-year period, shall participate in at least sixty hours of continuing medical education programs approved by the board.

3. Shall notify the board on the permittee's acceptance to an accredited internship or residency program.

L. A supervising qualified physician under this section:

1. Is responsible for all aspects of a permittee's performance whether or not the supervising qualified physician employs the permittee.

2. Is responsible for supervising the permittee and ensuring that the health care tasks performed by the permittee are within the permittee's scope of medical training and experience, are appropriate to the permittee's level of competence and are properly delegated by the supervising qualified physician.

3. May allow a permittee to administer or dispense drugs under the conditions of section 32-1491 if the controlled substance permit under which the drugs are dispensed is either the supervising qualified physician's or the eligible entity's permit.

4. May serve as a supervising qualified physician for only one permittee at any one time.

5. Shall notify the board, the eligible entity and the permittee in writing if the permittee exceeds the scope of the delegated health care tasks to allow the board to investigate.

M. For the purposes of this section:

1. "Direct supervision" means the supervising qualified physician is physically present with the permittee and patient.

2. "Indirect supervision with direct supervision immediately available" means the supervising qualified physician is physically present within the hospital or other eligible entity site of patient care and is immediately available to provide direct supervision of the permittee.

3. "Permittee" means a person who holds a transitional training permit issued pursuant to this section.

4. "Qualified physician" means a physician who possesses a full and unrestricted license issued pursuant to this chapter to engage in the practice of medicine in this state and who is not currently under board discipline.

§ 32-1433 Cancellation of active license

On request of an active licensee, the board may cancel that person's license if both of the following are true:

1. The licensee is not presently under investigation by the board.

2. The board has not commenced any disciplinary proceeding against the licensee.

§ 32-1434 Continuing medical education; audit

A. A person who holds an active license to practice medicine in this state shall satisfy a continuing medical education requirement that is designed to provide the necessary understanding of current developments, skills, procedures or treatment related to the practice of medicine in such amount and during such period as the board establishes by rule.

B. Compliance with subsection A of this section shall be documented at such times and in such manner as the board shall establish.

C. Failure of a person holding an active license to practice medicine to comply with this section without adequate cause being shown is grounds for probation, suspension or revocation of such person's license.

D. The board shall randomly audit, once every two years, at least ten per cent of physicians to verify continuing medical education compliance.

§ 32-1435 Change of address; costs; penalties

A. Each active licensee shall promptly and in writing inform the board of the licensee's current residence address, office address and telephone number and of each change in residence address, office address or telephone number that may later occur.

B. The board may assess the costs incurred by the board in locating a licensee and in addition a penalty of not to exceed one hundred dollars against a licensee who fails to comply with subsection A within thirty days from the date of change. Notwithstanding any law to the contrary, monies collected pursuant to this subsection shall be deposited in the Arizona medical board fund.

§ 32-1436 Fees and penalty

A. The board shall by a formal vote, at its annual fall meeting, establish nonrefundable fees and penalties that do not exceed the following:

1. For processing an application for an active license, seven hundred dollars.

2. For issuance of an active license, seven hundred dollars.

3. For an application to reactivate an inactive status license, five hundred dollars.

4. For issuance of a duplicate license, fifty dollars.

5. For renewal of an active license, seven hundred dollars.

6. For late renewal of an active license, an eight hundred dollar penalty.

7. For annual registration of an approved internship, residency, clinical fellowship program or short-term residency program, fifty dollars.

8. For an annual teaching license at an approved school of medicine or at an approved teaching hospital's accredited graduate medical education program, four hundred dollars.

9. For a five day educational teaching permit at an approved school of medicine or at an approved teaching hospital's accredited graduate medical education program, one hundred dollars.

10. For locum tenens registration, five hundred dollars.

11. For the sale of those copies of the annual medical directory that are not distributed free of charge, thirty dollars.

12. For the sale of the annual medical directory on CD-ROM, one hundred dollars.

13. For the sale of computerized tapes or diskettes not requiring programming, one hundred dollars.

14. For verification of a license, ten dollars.

15. For a copy of the minutes to board meetings during the current calendar year, twenty-five dollars for each set of minutes.

16. For copying records, documents, letters, minutes, applications and files, one dollar for the first three pages and twenty-five cents for each additional page.

17. For initial and annual registration to dispense drugs and devices, two hundred dollars.

18. For renewal applications that the board returns to the licensee for proper completion, a fee that does not exceed the cost of processing the incomplete application.

B. The board shall charge additional fees for services that are not required to be provided by this chapter but that the board deems necessary and appropriate to carry out its intent and purpose, except that these fees shall not exceed the actual cost of providing those services.

C. Notwithstanding subsection A of this section, the board may return the license renewal fee on special request.

D. The board shall provide computerized tapes or diskettes free to the management information systems office of the Arizona health care cost containment system.

E. The fee for minutes provided pursuant to this section includes postage. Annual subscription requests and fees for minutes shall be paid before February 1 of each year. Subscriptions for minutes of board meetings are not available for past years.

F. The fee for copying provided in this section includes postage. Copying fees for subpoenaed records shall be as prescribed in section 12-351.

G. The board may collect from the drawer of a dishonored check, draft order or note an amount allowed pursuant to section 44-6852.

§ 32-1437 Training permits; qualified military health professionals

A. The board shall issue a training permit to a qualified military health professional who is practicing allopathic medicine in the United States armed forces and who is discharging the health professional's official duties by participating in a clinical training program based at a civilian hospital affiliated with the United States department of defense.

B. Before the board issues the training permit, the qualified military health professional must submit a written statement from the United States department of defense that the applicant:

1. Is a member of the United States armed forces who is performing duties for and at the direction of the United States department of defense at a location in this state approved by the United States department of defense.

2. Has a current license or is credentialed to practice allopathic medicine in a jurisdiction of the United States.

3. Meets all required qualification standards prescribed pursuant to 10 United States Code section 1094(d) relating to the licensure requirements for health professionals.

4. Has not had a license to practice revoked by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter.

5. Is not currently under investigation, suspension or restriction by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter.

6. Has not surrendered, relinquished or given up a license in lieu of disciplinary action by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter. This paragraph does not prevent the board from considering the request for a training permit of a qualified military health professional who surrendered, relinquished or gave up a license in lieu of disciplinary action by a regulatory board in another jurisdiction if that regulatory board subsequently reinstated the qualified military health professional's license.

C. The qualified military health professional may not open an office or designate a place to meet patients or receive calls relating to the practice of allopathic medicine in this state outside of the facilities and programs of the approved civilian hospital.

D. The qualified military health professional may not practice outside of the professional's scope of practice.

E. A training permit issued pursuant to this section is valid for one year. The qualified military health professional may apply annually to the board to renew the permit. With each application to renew the qualified military health professional must submit a written statement from the United States department of defense asking the board for continuation of the training permit.

F. The board may not impose a fee to issue or renew a training permit to a qualified military health professional pursuant to this section.

§ 32-1438 Temporary licensure; requirements; fee

A. Beginning July 1, 2017, the board may issue a temporary license, which may not be renewed or extended, to allow a physician who is not a licensee to practice in this state for a total of up to two hundred fifty consecutive days if the physician meets all of the following requirements:

1. Holds an active and unrestricted license to practice medicine in a state, territory or possession of the United States.

2. Has applied for a license pursuant to section 32-1422 and meets the requirements specified in section 32-1422, subsection A, paragraphs 1 through 7.

3. Has paid any applicable fees.

B. The physician shall submit to the board a notarized affidavit attesting that the physician meets the requirements of subsection A, paragraphs 1 and 2 of this section. The physician shall notify the board immediately if any circumstance specified in subsection A, paragraphs 1 and 2 of this section changes during the application period for a temporary license or while holding a temporary license, at which time the board may suspend, deny or revoke the temporary license. The board may suspend, deny or revoke a temporary license and withdraw the application for initial licensure if the applicant has made a misrepresentation in the attestation required by this section or any other portion of the application pursuant to this chapter.

C. The board shall approve or deny an application under this section within thirty days after an applicant files a complete application. The approval of a temporary license pursuant to this section allows the physician to practice in this state without restriction.

D. If granted, the physician's temporary license expires the earlier of two hundred fifty days after the date the temporary license is granted or on approval or denial of the physician's license application submitted pursuant to section 32-1422.

E. For the purpose of meeting the requirements of subsection A of this section, an applicant shall provide the board the name of each state, territory or possession of the United States in which the person is licensed or has held a license and the board shall verify with the applicable regulatory board that the applicant holds an active and unrestricted license to practice medicine and has never had a license revoked or suspended or surrendered a license for disciplinary reasons. An applicant shall also provide the board with all medical employment as required by section 32-1422, subsection A. The board may accept the confirmation of this information from each other regulatory board verbally, in writing or through the use of the other regulatory board's website, which shall be followed by either an electronic or hard copy of the verification required by section 32-1422, subsection F before the physician's permanent license is granted. If the board is unable to verify the information within the initial thirty days as required by subsection C of this section, the board may extend the time frame by an additional thirty days to receive the necessary verification.

F. The board may establish a fee in rule for temporary licensure under this section.

§ 32-1439 Specialty certification; prohibited requirement for licensure; definition

A. The board may not require an applicant for licensure pursuant to this article to hold or maintain a specialty certification as a condition of licensure in this state. This subsection does not prohibit the board from considering an applicant's specialty certification as a factor in whether to grant a license to the applicant.

B. For the purposes of this section, "specialty certification" means certification by a board that specializes in one particular area of medicine and that may require examinations in addition to those required by this state to be licensed to practice medicine.

Article 3 Regulation

§ 32-1451 Grounds for disciplinary action; duty to report; immunity; proceedings; board action; notice requirements

A. The board on its own motion may investigate any evidence that appears to show that a doctor of medicine is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of medicine. On written request of a complainant, the board shall review a complaint that has been administratively closed by the executive director and take any action it deems appropriate. Any person may, and a doctor of medicine, the Arizona medical association, a component county society of that association and any health care institution shall, report to the board any information that appears to show that a doctor of medicine is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of medicine. The board or the executive director shall notify the doctor as to the content of the complaint as soon as reasonable. Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages. If requested, the board shall not disclose the name of a person who supplies information regarding a licensee's drug or alcohol impairment. It is an act of unprofessional conduct for any doctor of medicine to fail to report as required by this section. The board shall report any health care institution that fails to report as required by this section to that institution's licensing agency.

B. The chief executive officer, the medical director or the medical chief of staff of a health care institution shall inform the board if the privileges of a doctor to practice in that health care institution are denied, revoked, suspended or limited because of actions by the doctor that appear to show that the doctor is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to safely engage in the practice of medicine, along with a general statement of the reasons, including patient chart numbers, that led the health care institution to take the action. The chief executive officer, the medical director or the medical chief of staff of a health care institution shall inform the board if a doctor under investigation resigns or if a doctor resigns in lieu of disciplinary action by the health care institution. Notification shall include a general statement of the reasons for the resignation, including patient chart numbers. The board shall inform all appropriate health care institutions in this state as defined in section 36-401 and the Arizona health care cost containment system administration of a resignation, denial, revocation, suspension or limitation, and the general reason for that action, without divulging the name of the reporting health care institution. A person who reports information in good faith pursuant to this subsection is not subject to civil liability.

C. The board or, if delegated by the board, the executive director shall require, at the doctor's expense, any combination of mental, physical or oral or written medical competency examinations and conduct necessary investigations, including investigational interviews between representatives of the board and the doctor to fully inform itself with respect to any information filed with the board under subsection A of this section. These examinations may include biological fluid testing and other examinations known to detect the presence of alcohol or other drugs. The board or, if delegated by the board, the executive director may require the doctor, at the doctor's expense, to undergo assessment by a board approved rehabilitative, retraining or assessment program. This subsection does not establish a cause of action against any person, facility or program that conducts an assessment, examination or investigation in good faith pursuant to this subsection.

D. If the board finds, based on the information it receives under subsections A and B of this section, that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the board may restrict a license or order a summary suspension of a license pending proceedings for revocation or other action. If the board takes action pursuant to this subsection, it shall also serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing before the board or an administrative law judge within sixty days.

E. If, after completing its investigation, the board finds that the information provided pursuant to subsection A of this section is not of sufficient seriousness to merit disciplinary action against the license of the doctor, the board or a board committee may take any of the following actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. Require the licensee to complete designated continuing medical education courses.

3. File an advisory letter. The licensee may file a written response with the board within thirty days after receiving the advisory letter.

F. If the board finds that it can take rehabilitative or disciplinary action without the presence of the doctor at a formal interview, it may enter into a consent agreement with the doctor to limit or restrict the doctor's practice or to rehabilitate the doctor in order to protect the public and ensure the doctor's ability to safely engage in the practice of medicine. The board may also require the doctor to successfully complete a board approved rehabilitative, retraining or assessment program at the doctor's own expense.

G. The board shall not disclose the name of the person who provided information regarding a licensee's drug or alcohol impairment or the name of the person who files a complaint if that person requests anonymity.

H. If after completing its investigation the board believes that the information is or may be true, it may request a formal interview with the doctor. If the doctor refuses the invitation for a formal interview or accepts and the results indicate that grounds may exist for revocation or suspension of the doctor's license for more than twelve months, the board shall issue a formal complaint and order that a hearing be held pursuant to title 41, chapter 6, article 10. If after completing a formal interview the board finds that the protection of the public requires emergency action, it may order a summary suspension of the license pending formal revocation proceedings or other action authorized by this section.

I. If after completing the formal interview the board finds the information provided under subsection A of this section is not of sufficient seriousness to merit suspension for more than twelve months or revocation of the license, it may take the following actions:

1. Dismiss if, in the opinion of the board, the complaint is without merit.

2. Require the licensee to complete designated continuing medical education courses.

3. File an advisory letter. The licensee may file a written response with the board within thirty days after the licensee receives the advisory letter.

4. Enter into an agreement with the doctor to restrict or limit the doctor's practice or professional activities or to rehabilitate, retrain or assess the doctor in order to protect the public and ensure the doctor's ability to safely engage in the practice of medicine. The board may also require the doctor to successfully complete a board approved rehabilitative, retraining or assessment program at the doctor's own expense pursuant to subsection F of this section.

5. File a letter of reprimand.

6. Issue a decree of censure. A decree of censure is an official action against the doctor's license and may include a requirement for restitution of fees to a patient resulting from violations of this chapter or rules adopted under this chapter.

7. Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the doctor concerned. Probation may include temporary suspension for not to exceed twelve months, restriction of the doctor's license to practice medicine, a requirement for restitution of fees to a patient or education or rehabilitation at the licensee's own expense. If a licensee fails to comply with the terms of probation, the board shall serve the licensee with a written notice that states that the licensee is subject to a formal hearing based on the information considered by the board at the formal interview and any other acts or conduct alleged to be in violation of this chapter or rules adopted by the board pursuant to this chapter, including noncompliance with the term of probation, a consent agreement or a stipulated agreement. A licensee shall pay the costs associated with probation monitoring each year during which the licensee is on probation. The board may adjust this amount on an annual basis. The board may allow a licensee to make payments on an installment plan if a financial hardship occurs. A licensee who does not pay these costs within thirty days after the due date prescribed by the board violates the terms of probation.

J. If the board finds that the information provided in subsection A of this section warrants suspension or revocation of a license issued under this chapter, it shall initiate formal proceedings pursuant to title 41, chapter 6, article 10.

K. In a formal interview pursuant to subsection H of this section or in a hearing pursuant to subsection J of this section, the board in addition to any other action may impose a civil penalty in the amount of not less than one thousand dollars nor more than ten thousand dollars for each violation of this chapter or a rule adopted under this chapter.

L. An advisory letter is a public document.

M. Any doctor of medicine who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable safely to engage in the practice of medicine or to be medically incompetent is subject to censure, probation as provided in this section, suspension of license or revocation of license or any combination of these, including a stay of action, and for a period of time or permanently and under conditions as the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge the costs of formal hearings to the licensee who it finds to be in violation of this chapter.

N. If the board acts to modify any doctor of medicine's prescription writing privileges, the board shall immediately notify the state board of pharmacy of the modification.

O. If the board, during the course of any investigation, determines that a criminal violation may have occurred involving the delivery of health care, it shall make the evidence of violations available to the appropriate criminal justice agency for its consideration.

P. The board may divide into review committees of not less than three members, including a public member. The committees shall review complaints not dismissed by the executive director and may take the following actions:

1. Dismiss the complaint if a committee determines that the complaint is without merit.

2. Issue an advisory letter. The licensee may file a written response with the board within thirty days after the licensee receives the advisory letter.

3. Conduct a formal interview pursuant to subsection H of this section. This includes initiating formal proceedings pursuant to subsection J of this section and imposing civil penalties pursuant to subsection K of this section.

4. Refer the matter for further review by the full board.

Q. Pursuant to sections 35-146 and 35-147, the board shall deposit all monies collected from civil penalties paid pursuant to this chapter in the state general fund.

R. Notice of a complaint and hearing is effective by a true copy of it being sent by certified mail to the doctor's last known address of record in the board's files. Notice of the complaint and hearing is complete on the date of its deposit in the mail. The board shall begin a formal hearing within one hundred twenty days of that date.

S. A physician who submits an independent medical examination pursuant to an order by a court or pursuant to section 23-1026 is not subject to a complaint for unprofessional conduct unless, in the case of a court-ordered examination, the complaint is made or referred by a court to the board, or in the case of an examination conducted pursuant to section 23-1026, the complaint alleges unprofessional conduct based on some act other than a disagreement with the findings and opinions expressed by the physician as a result of the examination. For the purposes of this subsection, "independent medical examination" means a professional analysis of medical status that is based on a person's past and present physical, medical and psychiatric history and conducted by a licensee or group of licensees on a contract basis for a court or for a workers' compensation carrier, self-insured employer or claims processing representative if the examination was conducted pursuant to section 23-1026.

T. The board may accept the surrender of an active license from a person who admits in writing to any of the following:

1. Being unable to safely engage in the practice of medicine.

2. Having committed an act of unprofessional conduct.

3. Having violated this chapter or a board rule.

U. In determining the appropriate disciplinary action under this section, the board shall consider all previous nondisciplinary and disciplinary actions against a licensee.

V. In determining the appropriate action under this section, the board may consider a direct or indirect competitive relationship between the complainant and the respondent as a mitigating factor.

§ 32-1451.01 Right to examine and copy evidence; witnesses; documents; testimony; representation

A. In connection with the investigation by the board on its own motion, or as the result of information received pursuant to section 32-1451, subsection A, the board or its duly authorized agents or employees at all reasonable times may examine and copy any documents, reports, records or other physical evidence of the person it is investigating or that is in possession of any hospital, clinic, physician's office, laboratory, pharmacy, public or private agency, health care institution as defined in section 36-401 and health care provider and that relates to medical competence, unprofessional conduct or the mental or physical ability of a licensee to safely practice medicine.

B. For the purpose of all investigations and proceedings conducted by the board:

1. The board on its own initiative or on application of any person involved in the investigation may issue subpoenas to require the attendance and testimony of witnesses or to demand the production for examination or copying of documents or any other physical evidence that relates to medical competence, unprofessional conduct or the mental or physical ability of a licensee to safely practice medicine. Within five days after a person is served with a subpoena that person may petition the board to revoke, limit or modify the subpoena. The board shall do so if in its opinion the evidence required does not relate to unlawful practices covered by this chapter, is not relevant to the charge that is the subject matter of the hearing or investigation or does not describe with sufficient particularity the physical evidence whose production is required. Any member of the board or any agent designated by the board may administer oaths or affirmations, examine witnesses and receive evidence.

2. Any person appearing before the board may be represented by counsel.

3. On application by the board or by the person subpoenaed, the superior court may issue an order to either:

(a) Require the subpoenaed person to appear before the board or the duly authorized agent to produce evidence relating to the matter under investigation.

(b) Revoke, limit or modify the subpoena if in the court's opinion the evidence demanded does not relate to unlawful practices covered by this chapter, is not relevant to the charge which is the subject matter of the hearing or investigation or does not describe with sufficient particularity the evidence whose production is required.

C. Patient records, including clinical records, medical reports, laboratory statements and reports, any file, film, other report or oral statement relating to diagnostic findings or treatment of patients, any information from which a patient or the patient's family might be identified or any information received and records or reports kept by the board as a result of the investigation procedure outlined in this chapter are not available to the public.

D. This section and any other law making communications between a physician and a physician's patient privileged does not apply to investigations or proceedings conducted pursuant to this chapter. The board and its employees, agents and representatives shall keep in confidence the names of any patients whose records are reviewed during the course of investigations and proceedings pursuant to this chapter.

E. Hospital records, medical staff records, medical staff review committee records and testimony concerning these records and proceedings related to the creation of these records are not available to the public, shall be kept confidential by the board and are subject to the same provisions concerning discovery and use in legal actions as are the original records in the possession and control of hospitals, their medical staffs and their medical staff review committees. The board shall use such records and testimony during the course of investigations and proceedings pursuant to this chapter.

F. The court may find a person who does not comply with a subpoena issued pursuant to this section in contempt of court.

§ 32-1451.02 Disciplinary action; reciprocity

A. The board shall initiate an investigation pursuant to section 32-1451 if a medical regulatory board in another jurisdiction in the United States has taken disciplinary action against a licensee for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter.

B. The board shall order the summary suspension of a license pending proceedings for revocation or other action if a medical regulatory board in another jurisdiction in the United States has taken the same action because of its belief that the public health, safety or welfare imperatively required emergency action.

§ 32-1451.03 Complaints; requirements; confidentiality; exception

A. The board shall not act on its own motion or on any complaint received by the board in which an allegation of unprofessional conduct or any other violation of this chapter against a professional who holds an Arizona license occurred more than four years before the complaint is received by the board. The time limitation does not apply to:

1. Medical malpractice settlements or judgments or allegations of sexual misconduct or if an incident or occurrence involved a felony, diversion of a controlled substance or impairment while practicing by the licensee.

2. A board's consideration of the specific unprofessional conduct related to a licensee's failure to disclose conduct or a violation as required by law.

B. If a complainant wishes to have the complainant's identifying information withheld from the physician against whom the allegation of unprofessional conduct is being made, the board shall enter into a written agreement with the complainant stating that the complainant's identifying information will not be provided to the physician against whom the allegation of unprofessional conduct is being made to the extent consistent with the administrative appeals process. The board shall post this policy on the board's website where a person would submit a complaint online.

C. The board shall not open an investigation if identifying information regarding the complainant is not provided.

§ 32-1451.04 Burden of proof

Except for disciplinary matters brought pursuant to section 32-1401, paragraph 27, subdivision (aa), the board has the burden of proof by clear and convincing evidence for disciplinary matters brought pursuant to this chapter.

§ 32-1452 Substance abuse treatment and rehabilitation; confidential program; private contract; funding; license restrictions; immunity

A. The board may establish a confidential program for the treatment and rehabilitation of doctors of medicine who are licensed pursuant to this chapter and physician assistants who are licensed pursuant to chapter 25 of this title and who are impaired by alcohol or drug abuse. This program shall include education, intervention, therapeutic treatment and posttreatment monitoring and support.

B. The board may contract with other organizations to operate the program established pursuant to subsection A of this section. A contract with a private organization shall include the following requirements:

1. Periodic reports to the board regarding treatment program activity.

2. Release to the board on demand of all treatment records.

3. Immediate reporting to the board of the name of an impaired doctor or physician assistant whom the treating organization believes to be misusing chemical substances.

4. Reports to the board, as soon as possible, of the name of a doctor or physician assistant who refuses to submit to treatment or whose impairment is not substantially alleviated through treatment.

C. The board may allocate an amount of not to exceed forty dollars from each fee it collects from the biennial renewal of active licenses pursuant to section 32-1436 for the operation of the program established by this section.

D. A doctor of medicine or physician assistant who commits unprofessional conduct as defined in section 32-1401, paragraph 27, subdivision (f) shall agree to enter into a consent agreement with the board or the doctor or physician assistant shall be placed on probation or shall be subject to other action as provided by law.

E. In order to determine that a doctor of medicine or physician assistant who has been placed on probationary order or who has entered into a consent agreement pursuant to this section has not committed unprofessional conduct as defined in section 32-1401, paragraph 27, subdivision (f) after that order is no longer in effect, the board or its designee may require the doctor of medicine or physician assistant to submit to body fluid examinations and other examinations known to detect the presence of alcohol or other drugs at any time within five consecutive years following termination of the probationary order or consent agreement.

F. A doctor of medicine or physician assistant who is or was under a consent agreement or probationary order that is no longer in effect and who commits unprofessional conduct as defined in section 32-1401, paragraph 27, subdivision (f) shall request the board to place the license on inactive status with cause. If the doctor or physician assistant fails to do this, the board shall summarily suspend the license pursuant to section 32-1451, subsection D. In order to reactivate the license, the doctor or physician assistant shall successfully complete a long-term care residential program, an inpatient hospital treatment program, an intensive outpatient treatment program or any combination of these programs and shall meet the applicable requirements of section 32-1431, subsection D. After the doctor or physician assistant completes treatment, the board shall determine whether it should refer the matter for a formal hearing for the purpose of suspending or revoking the license or to place the licensee on probation for a minimum of five years with restrictions necessary to ensure the public's safety.

G. The board shall revoke the license of a doctor of medicine or physician assistant if that licensee commits unprofessional conduct as defined in section 32-1401, paragraph 27, subdivision (f) and was previously placed on probation pursuant to subsection D of this section and the probation is no longer in effect. The board may accept the surrender of the license if the licensee admits in writing to being impaired by alcohol or drug abuse.

H. An evaluator, teacher, supervisor or volunteer in the board's substance abuse treatment and rehabilitation program who acts in good faith within the scope of that program is not subject to civil liability, including malpractice liability, for the actions of a doctor or physician assistant who is attending the program pursuant to board action.

§ 32-1452.01 Mental, behavioral and physical health evaluation and treatment; confidential program; private contract; immunity

A. The board may establish a confidential program for the evaluation, treatment and monitoring of persons who are licensed pursuant to this chapter and chapter 25 of this title and who have medical, psychiatric, psychological or behavioral health disorders that may impact their ability to safely practice medicine or perform health care tasks. The program shall include education, intervention, therapeutic treatment and posttreatment monitoring and support.

B. A licensee who has a medical, psychiatric, psychological or behavioral health disorder described in subsection A of this section may agree to enter into a consent agreement for participation in a program established pursuant to this section.

C. The board may contract with other organizations to operate a program established pursuant to this section. A contract with a private organization must include the following requirements:

1. Periodic reports to the board regarding treatment program activity.

2. Release to the board on demand of all treatment records.

3. Immediate reporting to the Arizona medical board of the name of a licensee who the treating organization believes is incapable of safely practicing medicine or performing health care tasks. If the licensee is a physician assistant, the Arizona medical board shall immediately report this information to the Arizona regulatory board of physician assistants.

D. An evaluator, teacher, supervisor or volunteer in a program established pursuant to this section who acts in good faith within the scope of that program is not subject to civil liability, including malpractice liability, for the actions of a licensee who is attending the program pursuant to board action.

§ 32-1453 Judicial review

Except as provided in section 41-1092.08, subsection H, an appeal to the superior court in Maricopa county may be taken from final decisions of the board pursuant to title 12, chapter 7, article 6.

§ 32-1454 Injunction

A. An injunction shall issue forthwith to enjoin the practice of medicine by either of the following:

1. One not licensed to practice medicine or exempt from the requirement therefor pursuant to this chapter.

2. A doctor of medicine whose continued practice will or well might cause irreparable damage to the public health and safety prior to the time proceedings under section 32-1451 could be instituted and completed.

B. In a petition for injunction pursuant to the paragraph numbered 1 of subsection A of this section it shall be sufficient to charge that the respondent on a day certain in a named county engaged in the practice of medicine without a license and without being exempt from the requirements therefor pursuant to this chapter. No showing of damage or injury as the result thereof shall be required.

C. In a petition for injunction pursuant to the paragraph numbered 2 of subsection A of this section there shall be set forth with particularity the facts which make it appear that irreparable damage to the public health and safety will or well might occur prior to the time proceedings under section 32-1451 could be instituted and completed.

D. An injunction shall issue forthwith to enjoin any act specified in section 32-1455, subsection B.

E. Such petition shall be filed by the board in the superior court of Maricopa county or in the county where the defendant resides or is found.

F. Issuance of injunction shall not relieve the respondent from being subject to any other proceedings under law provided for in this chapter or otherwise, and violation of an injunction shall be punished as for contempt of court.

G. In all other respects injunction proceedings under this section shall be governed as near as may be by the law otherwise applicable to injunctions.

§ 32-1455 Violation; classification

A. The following acts are class 5 felonies:

1. The practice of medicine by a person not licensed or exempt from licensure pursuant to this chapter.

2. Securing a license to practice medicine pursuant to this chapter by fraud or deceit.

3. Impersonating a member of the board in issuing a license to practice medicine to another.

B. The following acts if committed by a person not licensed under this chapter or exempt from licensure pursuant to section 32-1421 are class 2 misdemeanors:

1. The use of the designation "M.D." in a way that would lead the public to believe that a person was licensed to practice medicine in this state.

2. The use of the designation "doctor of medicine", "physician", "surgeon", "physician and surgeon" or any combination thereof unless such designation additionally contains the description of another branch of the healing arts.

3. The use of the designation "doctor" by a member of another branch of healing arts unless there is set forth with each such designation the other branch of the healing arts concerned.

4. The use of any other words, initials, symbols or combination thereof which would lead the public to believe such person is licensed to practice medicine in this state.

§ 32-1456 Medical assistants; allowable tasks; training; use of title; violation; classification; definition

A. A medical assistant may perform the following medical procedures under the direct supervision of a doctor of medicine, physician assistant or nurse practitioner:

1. Take body fluid specimens.

2. Administer injections.

B. A medical assistant may place and remove urinary catheters after appropriate training and under the general supervision of a physician who is licensed pursuant to this chapter or chapter 17 of this title, a nurse practitioner, clinical nurse specialist or certified nurse midwife who is licensed pursuant to chapter 15 of this title or a physician assistant who is licensed pursuant to chapter 25 of this title.

C. The board by rule may prescribe other medical procedures that a medical assistant may perform under the direct supervision of a doctor of medicine, physician assistant or nurse practitioner on a determination by the board that the procedures may be competently performed by a medical assistant.

D. Without the direct supervision of a doctor of medicine, physician assistant or nurse practitioner, a medical assistant may do the following tasks:

1. Perform billing and coding.

2. Verify insurance.

3. Make patient appointments.

4. Perform scheduling.

5. Record the findings of a doctor of medicine in patient charts and transcribe materials in patient charts and records.

6. Perform visual acuity screening as part of a routine physical.

7. Take and record patient vital signs and medical history on medical records.

8. Communicate documented medical advice, documented interpretation of test results and documented orders from a doctor of medicine, physician assistant or nurse practitioner.

9. Obtain, process and communicate medication or procedure prior authorization as documented and ordered by a doctor of medicine, physician assistant or nurse practitioner.

E. The board by rule shall prescribe medical assistant training requirements. The training requirements for a medical assistant may be satisfied through a training program that meets all of the following:

1. Is designed and offered by a physician.

2. Meets or exceeds any of the approved training program requirements specified in rule.

3. Verifies the entry-level competencies of a medical assistant as prescribed by rule.

4. Provides written verification to the individual of successful completion of the training program.

F. A person who uses the title "medical assistant" or a related abbreviation is guilty of a class 3 misdemeanor unless that person is working as a medical assistant under the direct supervision of a doctor of medicine, physician assistant or nurse practitioner or possesses written verification of successful completion of a training program provided pursuant to subsection E of this section.

G. For the purposes of this section, "general supervision" means that a procedure or service is provided under the overall direction and control of a physician, nurse practitioner, clinical nurse specialist, certified nurse midwife or physician assistant but that the presence of the physician, nurse practitioner, clinical nurse specialist, certified nurse midwife or physician assistant is not required during the performance of the procedure or service.

§ 32-1457 Acquired immune deficiency syndrome; disclosure of patient information; immunity; definition

A. Notwithstanding section 32-1401, it is not an act of unprofessional conduct for a doctor of medicine to report to the department of health services the name of a patient's spouse or sex partner or a person with whom the patient has shared hypodermic needles or syringes if the doctor of medicine knows that the patient has contracted or tests positive for the human immunodeficiency virus and that the patient has not or will not notify these people and refer them to testing. Before making the report to the department of health services, the doctor of medicine shall first consult with the patient and ask the patient to release this information voluntarily.

B. It is not an act of unprofessional conduct for a doctor of medicine who knows or has reason to believe that a significant exposure has occurred between a patient who has contracted or tests positive for the human immunodeficiency virus and a health care or public safety employee to inform the employee of the exposure. Before informing the employee, the doctor of medicine shall consult with the patient and ask the patient to release this information voluntarily. If the patient does not release this information the doctor of medicine may do so in a manner that does not identify the patient.

C. This section does not impose a duty to disclose information. A doctor of medicine is not civilly or criminally liable for either disclosing or not disclosing information.

D. If a doctor of medicine decides to make a disclosure pursuant to this section, he may request that the department of health services make the disclosure on his behalf.

E. For the purposes of this section, "significant exposure" means contact of a person's ruptured or broken skin or mucous membranes with another person's blood or body fluids, other than tears, saliva or perspiration, of a magnitude that the centers for disease control of the United States public health service have epidemiologically demonstrated can result in transmission of the human immunodeficiency virus.

§ 32-1458 Reinstatement of revoked or surrendered license

A. On written application, the board may issue a new license to a physician whose license was previously revoked by the board or surrendered by the applicant if the applicant demonstrates to the board's satisfaction that the applicant is completely rehabilitated with respect to the conduct that was the basis for the revocation or the surrender. In making its decision, the board shall determine:

1. That the applicant has not engaged in any conduct during the revocation or surrender period that would have constituted a basis for revocation pursuant to section 32-1451.

2. If a criminal conviction was a basis of the revocation or surrender, that the applicant's civil rights have been fully restored pursuant to statute or any other applicable recognized judicial or gubernatorial order.

3. That the applicant has made restitution to any aggrieved person as ordered by a court of competent jurisdiction.

4. That the applicant demonstrates any other standard of rehabilitation the board determines is appropriate.

B. Except as provided in subsection C of this section, a person shall not submit an application for reinstatement less than five years after the date of revocation or surrender.

C. The board shall vacate its previous order to revoke a license if that revocation was based on a conviction of a felony or an offense involving moral turpitude and that conviction has been reversed on appeal. The physician may submit an application for reinstatement as soon as the court enters the reversal.

D. An applicant for reinstatement shall comply with all licensing requirements prescribed by this chapter.

§ 32-1459 Duty to report

If a death or an incident requiring emergency medical response occurs in a dental office or dental clinic during the administration of or recovery from general anesthesia or sedation by a doctor of medicine, the doctor of medicine shall, and any other person may, report the death or incident to the board within seven business days after the occurrence.

Article 4 Emergency Aid

§ 32-1471 Health care provider and any other person; emergency aid; nonliability

Any health care provider licensed or certified to practice as such in this state or elsewhere, or a licensed ambulance attendant, driver or pilot as defined in section 41-1831, or any other person who renders emergency care at a public gathering or at the scene of an emergency occurrence gratuitously and in good faith shall not be liable for any civil or other damages as the result of any act or omission by such person rendering the emergency care, or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the injured persons, unless such person, while rendering such emergency care, is guilty of gross negligence.

§ 32-1472 Limited liability for emergency health care at amateur athletic events

A health care provider licensed or certified pursuant to title 32 who agrees with any person or school to voluntarily attend an amateur athletic practice, contest or other event to be available to render emergency health care within the provider's authorized scope of practice and without compensation to an athlete injured during such event is not liable for any civil or other damages as the result of any act or omission by the provider rendering the emergency care, or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the injured athlete, if the provider acts in good faith without gross negligence.

Article 5 Transfusions

§ 32-1481 Limitation of liability

A. No physician, surgeon, hospital or person who assists a physician, surgeon or hospital in obtaining, preparing, injecting or transfusing blood or its components from one or more human beings to another human being shall be liable on the basis of implied warranty or strict tort liability for any such activity but such person or entity shall be liable for his or its negligent or wilful misconduct.

B. No nonprofit blood bank, tissue bank, donor or entity who donates, obtains, processes or preserves blood or its components from one or more human beings for the purpose of transfusing or transferring blood or its components to another human being shall be liable on the basis of implied warranty or strict tort liability for any such activity but such person or entity shall be liable for his or its negligent or wilful misconduct.

§ 32-1482 Reporting of hepatitis cases

The director of the department of health services for the purposes of reducing the transmission of hepatitis by injection or transfusion of blood and its components shall adopt rules and regulations for reporting of cases of hepatitis and provide for the dissemination of information about such hepatitis cases to all federally licensed blood banks in the state and health care institutions which request such information.

§ 32-1483 Notification to donors

Pursuant to rules promulgated by the director of the department of health services, all federally registered blood banks, blood centers and plasma centers in this state shall notify blood donors of any test results with significant evidence suggestive of syphilis, HIV or hepatitis B.

Article 6 Dispensing of Drugs and Devices

§ 32-1491 Dispensing of drugs and devices; exception; civil penalty; conditions; definition

A. Except as provided in subsections B and F of this section, a doctor of medicine may dispense drugs and devices kept by the doctor if:

1. All drugs are dispensed in packages labeled with the following information:

(a) The dispensing doctor's name, address and telephone number.

(b) The date the drug is dispensed.

(c) The patient's name.

(d) The name and strength of the drug, directions for its use and any cautionary statements.

2. The dispensing doctor enters into the patient's medical record the name and strength of the drug dispensed, the date the drug is dispensed and the therapeutic reason.

3. The dispensing doctor keeps all drugs in a locked cabinet or room, controls access to the cabinet or room by a written procedure and maintains an ongoing inventory of its contents.

4. The doctor registers with the board to dispense drugs and devices and pays the registration fee prescribed by section 32-1436.

B. A doctor of medicine may not dispense a schedule II controlled substance that is an opioid, except for an implantable device or an opioid that is for medication-assisted treatment for substance use disorders.

C. Except in an emergency situation, a doctor who dispenses drugs without being registered by the board to do so is subject to a civil penalty by the board of at least $300 and not more than $1,000 for each transaction and is prohibited from further dispensing for a period of time as prescribed by the board.

D. Before a physician dispenses a drug pursuant to this section, the physician shall give the patient a prescription and inform the patient that the prescription may be filled by the prescribing physician or by a pharmacy of the patient's choice.

E. Except as provided in subsection F of this section, a doctor shall dispense only to the doctor's own patient and only for conditions being treated by that doctor. The doctor shall provide direct supervision of a medical assistant, nurse or attendant involved in the dispensing process. For the purposes of this subsection, "direct supervision" means that a doctor is present and makes the determination as to the legitimacy or the advisability of the drugs or devices to be dispensed.

F. A physician who dispenses not more than a two-day supply of a noncontrolled substance medication that is kept by a health care institution may dispense the noncontrolled substance medication under the dispensing registration of the medical director of the health care institution's emergency department or satellite emergency department and is not required to register to dispense medications pursuant to this section if both of the following apply:

1. The physician dispenses only to patients of the health care institution's emergency department or satellite emergency department for conditions diagnosed or treated at the emergency department or satellite emergency department.

2. The physician works only at the health care institution's emergency department or satellite emergency department.

G. This section shall be enforced by the board, which shall establish rules regarding labeling, recordkeeping, storage and packaging of drugs that are consistent with the requirements of chapter 18 of this title. The board may conduct periodic reviews of dispensing practices to ensure compliance with this section and applicable rules.

H. For the purposes of this section, "dispense" means the delivery by a doctor of medicine of a prescription drug or device to a patient, except for samples packaged for individual use by licensed manufacturers or repackagers of drugs, and includes the prescribing, administering, packaging, labeling and security necessary to prepare and safeguard the drug or device for delivery.

Chapter 14 Naturopathic Medicine

Article 1 Naturopathic Physicians Medical Board

§ 32-1501 Definitions

(Paragraph 31, subdivision (yy) was added with a 1998 Prop. 105 clause pursuant to L15, Ch. 256)

In this chapter, unless the context otherwise requires:

1. "Accepted therapeutic purpose" means treatment of a disease, injury, ailment or infirmity that is competent and generally recognized as safe and effective.

2. "Active license" means a current valid license to practice naturopathic medicine.

3. "Adequate medical records" means legible medical records containing, at a minimum, sufficient information to identify the patient, support the diagnosis, describe the treatment, accurately document the results, indicate advice and cautionary warning provided to the patient and provide sufficient information for a similarly qualified practitioner to assume continuity of the patient's care at any point in the course of treatment.

4. "Approved clinical training program" or "clinical training program" means a program for naturopathic medical students in which the training occurred or is being conducted by or in conjunction with an approved school of naturopathic medicine.

5. "Approved internship program" or "internship" means that the program in which the training occurred or is being conducted has been approved for internship training for physicians or for graduates of a school of naturopathic medicine by the board or was approved or accredited by an educational or professional association recognized by the board or by another state's or country's licensing agency recognized by the board.

6. "Approved postdoctoral training" or "postdoctoral training" means that the program in which the training occurred or is being conducted has been approved for specialty training or for graduate medical education in naturopathic medicine by the board or approved or accredited by an educational or professional association recognized by the board or by another state's or country's licensing agency recognized by the board.

7. "Approved preceptorship program" or "preceptorship" means that the program in which the training occurred or is being conducted has been approved for preceptorship training for physicians or for graduates of a school of naturopathic medicine by the board or was approved or accredited by an educational or professional association recognized by the board or by another state's or country's licensing agency recognized by the board.

8. "Approved school of naturopathic medicine" or "school of naturopathic medicine" means a school, college or university determined by the board to have an educational program that meets standards prescribed by the council on naturopathic medical education, or its successor agency, and that offers a course of study that, on successful completion, results in the awarding of the degree of doctor of naturopathic medicine and whose course of study is either of the following:

(a) Accredited or a candidate for accreditation by an accrediting agency recognized by the United States secretary of education as a specialized accrediting agency for schools of naturopathic medicine or its successor.

(b) Accredited or a candidate for accreditation by an accrediting agency recognized by the council for higher education accreditation or its successor.

9. "Board" means the naturopathic physicians medical board.

10. "Chelation therapy" means an experimental medical therapy to restore cellular homeostasis through the use of intravenous, metal-binding and bioinorganic agents such as ethylene diamine tetraacetic acid. Chelation therapy does not include experimental therapy used to treat heavy metal poisoning.

11. "Completed application" means that the applicant paid the required fees and supplied all documents and information as requested by the board and in a manner acceptable to the board.

12. "Controlled substance" means a drug, substance or immediate precursor in schedules I through V of title 36, chapter 27, article 2 or the rules adopted pursuant to title 36, chapter 27, article 2.

13. "Direct supervision" means that a physician who is licensed pursuant to this chapter or chapter 13, 17 or 29 of this title:

(a) Is physically present and within sight or sound of the person supervised and is available for consultation regarding procedures that the physician has authorized and for which the physician remains responsible.

(b) Has designated a person licensed pursuant to this chapter or chapter 13, 17 or 29 of this title to provide direct supervision in the physician's absence.

14. "Doctor of naturopathic medicine" or "doctor" means a natural person who is licensed to practice naturopathic medicine under this chapter.

15. "Drug" has the same meaning prescribed in section 32-1901 but does not include:

(a) Intravenous administration of legend drugs, except for:

(i) Vitamins, chelation therapy and drugs used in emergency resuscitation and stabilization.

(ii) Minerals.

(iii) Nutrients. For the purposes of this item, "nutrient" means a substance that provides nourishment for growth or metabolism and that is manufactured and supplied for intravenous use by a manufacturer registered with the United States food and drug administration or compounded by a pharmacy licensed by the Arizona state board of pharmacy.

(b) Controlled substances listed as schedule I or II controlled substances as defined in the federal controlled substances act of 1970 (21 United States Code section 802), except morphine, any drug that is reclassified from schedule III to schedule II after January 1, 2014 and any homeopathic preparations that are also controlled substances.

(c) Cancer chemotherapeutics classified as legend drugs.

(d) Antipsychotics.

16. "General supervision" means that the physician is available for consultation regarding procedures that the physician has authorized and for which the physician remains responsible.

17. "Legend drug" means any drug that is defined by section 503(b) of the federal food, drug, and cosmetic act and under which definition its label is required to bear the statement "Rx only".

18. "Letter of concern" means a nondisciplinary advisory letter that is issued by the board to a person who is regulated under this chapter and that states that while there is insufficient evidence to support disciplinary action the board believes that the person should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in action against the person's license, certificate or registration.

19. "Letter of reprimand" means a disciplinary letter that is issued by the board and that informs a person who is regulated under this chapter that the person's conduct violates state or federal law but does not require the board to restrict the person's license, certificate or registration because the person's conduct did not result in harm to a patient or to the public.

20. "Limit" means taking a nondisciplinary action that alters the physician's practice or professional activities if the board determines that there is evidence that the physician is or may be mentally or physically unable to safely engage in the practice of medicine.

21. "Medical assistant" or "naturopathic medical assistant" means a person who is certified by the board as a medical assistant, who assists a doctor of naturopathic medicine and who may perform delegated procedures that are commensurate with the assistant's education and training under the direct supervision of a doctor of naturopathic medicine and that do not include diagnosing, designing or modifying established treatment programs or those procedures prohibited by the board or by this chapter.

22. "Medically incompetent" means a person who is licensed, certified or registered pursuant to this chapter and who lacks sufficient naturopathic medical knowledge or skills, or both, to a degree that is likely to endanger the health of patients.

23. "Natural substance" means a homeopathic, botanical, nutritional or other supplement that does not require a prescription pursuant to federal law before it is prescribed, dispensed or otherwise furnished to a patient and that is prescribed by a physician who is licensed pursuant to this chapter to enhance health, prevent disease or treat a medical condition diagnosed by the physician.

24. "Naturopathic medical student" means a person who is enrolled in a course of study at an approved school of naturopathic medicine.

25. "Naturopathic medicine" means medicine as taught in approved schools of naturopathic medicine and in clinical, internship, preceptorship and postdoctoral training programs approved by the board and practiced by a recipient of a degree of doctor of naturopathic medicine licensed pursuant to this chapter.

26. "Nurse" means a person who is licensed pursuant to chapter 15 of this title.

27. "Physician" means a doctor of naturopathic medicine who is licensed pursuant to this chapter.

28. "Practice of naturopathic medicine" means a medical system of diagnosing and treating diseases, injuries, ailments, infirmities and other conditions of the human mind and body, including by natural means, drugless methods, drugs, nonsurgical methods, devices, physical, electrical, hygienic and sanitary measures and all forms of physical agents and modalities.

29. "Restrict" means taking a disciplinary action that alters the physician's practice or professional activities if the board determines that there is evidence that the physician is or may be medically incompetent or guilty of unprofessional conduct.

30. "Specialist" means a physician who has successfully completed approved postdoctoral training, who is certified by a specialty board of examiners recognized by the board and who is certified by the board to practice the specialty pursuant to this chapter.

31. "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere:

(a) Intentionally disclosing a professional secret or intentionally disclosing a privileged communication except as either of these may otherwise be required by law.

(b) Engaging in any dishonorable conduct reflecting unfavorably on the profession.

(c) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case conviction by any court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission of the felony or misdemeanor.

(d) Habitual intemperance in the use of alcohol or any substance abuse.

(e) Engaging in the illegal use of any narcotic or hypnotic drugs, or illegal substances.

(f) Engaging in conduct that the board determines is gross malpractice, repeated malpractice or any malpractice resulting in the death of a patient.

(g) Impersonating another doctor of naturopathic medicine or any other practitioner of the healing arts.

(h) Falsely acting or assuming to act as a member, an employee or an authorized agent of the board.

(i) Procuring or attempting to procure a license or a certificate pursuant to this chapter by fraud, by misrepresentation or by knowingly taking advantage of the mistake of another person or agency.

(j) Having professional connection with or lending one's name to enhance or continue the activities of an illegal physician or an illegal practitioner of any healing art.

(k) Representing that a manifestly incurable disease, injury, ailment or infirmity can be permanently cured, or falsely or fraudulently representing that a curable disease, injury, ailment or infirmity can be cured within a stated time.

(l) Offering, undertaking or agreeing to cure or treat a disease, injury, ailment or infirmity by a secret means, method, treatment, medicine, substance, device or instrumentality.

(m) Refusing to divulge to the board on demand the means, method, treatment, medicine, substance, device or instrumentality used in the treatment of a disease, injury, ailment or infirmity.

(n) Giving or receiving, or aiding or abetting the giving or receiving of, rebates, either directly or indirectly.

(o) Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of naturopathic medicine or any naturopathic treatment method.

(p) Engaging in immorality or misconduct that tends to discredit the naturopathic profession.

(q) Having a license refused, revoked or suspended by any other state, district or territory of the United States or any other country, unless it can be shown that this action was not due to reasons that relate to the ability to safely and skillfully practice as a doctor of naturopathic medicine or to any act of unprofessional conduct in this paragraph.

(r) Engaging in any conduct or practice that is contrary to recognized standards of ethics of the naturopathic profession, any conduct or practice that does or might constitute a danger to the health, welfare or safety of the patient or the public, or any conduct, practice or condition that does or might impair the ability to safely and skillfully practice as a doctor of naturopathic medicine.

(s) Failing to observe any federal, state, county or municipal law relating to public health as a physician in this state.

(t) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate this chapter or board rules.

(u) Committing false, fraudulent, deceptive or misleading advertising or advertising the quality of a medical or health care service by a physician or by the physician's staff, employer or representative.

(v) Failing or refusing to maintain adequate medical records on a patient or failing or refusing to make medical records in the physician's possession promptly available to another physician or health care provider who is licensed pursuant to chapter 7, 8, 13, 15, 17 or 29 of this title on request and receipt of proper authorization to do so from the patient, a minor patient's parent, the patient's legal guardian or the patient's authorized representative or failing to comply with title 12, chapter 13, article 7.1.

(w) Referring a patient to a diagnostic or treatment facility or prescribing goods and services without disclosing in writing to the patient that the physician has a pecuniary interest in the facility, goods or services to which the patient is referred or prescribed. This subdivision does not apply to a referral by one physician or practitioner to another physician or practitioner within a group of physicians or practitioners practicing together.

(x) Engaging in sexual intimacies with a patient in the course of direct treatment.

(y) Failing to dispense drugs and devices in compliance with article 4 of this chapter.

(z) Administering, dispensing or prescribing any drug or a device for other than an accepted therapeutic purpose.

(aa) Falsely representing or holding oneself out as being a specialist or representation by a doctor of naturopathic medicine or the doctor's staff, employer or representative that the doctor is boarded or board certified if this is not true or that standing is not current.

(bb) Delegating professional duties and responsibilities to a person if the person has not been approved or qualified by licensure or by certification to perform these duties or responsibilities.

(cc) Failing to appropriately supervise a naturopathic medical student, a nurse, a medical assistant, a health care provider or a technician who is employed by or assigned to the physician during the performance of delegated professional duties and responsibilities.

(dd) Using experimental forms of diagnosis or treatment without adequate informed consent of the patient or the patient's legal guardian and without conforming to experimental criteria, including protocols, detailed records, periodic analysis of results and periodic review by a medical peer review committee as approved by the United States food and drug administration or its successor agency.

(ee) Failing to furnish information in a timely manner to the board or investigators or representatives of the board if this information is legally requested by the board and failing to allow properly authorized board personnel on demand to examine and have access to documents, reports and records maintained by the physician that relate to the physician's medical practice or medically related activities.

(ff) Failing to report in writing to the board evidence that a person who is licensed, certified or registered pursuant to this chapter is or may be medically incompetent, guilty of unprofessional conduct or mentally or physically unable to safely practice or assist in the practice of naturopathic medicine.

(gg) Conducting or engaging in an internship or preceptorship in naturopathic medicine without being approved and registered by the board for that internship or preceptorship.

(hh) Signing a blank, undated or predated prescription form.

(ii) Engaging in conduct that the board determines is gross negligence, repeated negligence or negligence resulting in harm or death to a patient.

(jj) Knowingly making a false or misleading statement in oral testimony to the board on a form required by the board or in written correspondence to the board, including attachments to that correspondence.

(kk) The failure of a physician who is the chief medical officer, the executive officer or the chief of staff of an internship, a preceptorship or a clinical training program to report in writing to the board that the privileges of a doctor of naturopathic medicine, a naturopathic medical student or a medical assistant have been denied, limited, revoked or suspended because that doctor's, student's or assistant's actions appear to indicate that the person is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be unable to safely engage or assist in the practice of naturopathic medicine.

(ll) Having action taken against a doctor of naturopathic medicine by a licensing or regulatory board in another jurisdiction due to that doctor's mental or physical inability to engage safely in the practice of naturopathic medicine or the doctor's medical incompetence or for unprofessional conduct as defined by that licensing or regulatory board and that corresponds directly or indirectly to an act of unprofessional conduct prescribed by this paragraph. The action taken may include refusing, denying, revoking or suspending a license, otherwise limiting, restricting or monitoring a licensee or placing a licensee on probation by that licensing or regulatory board.

(mm) Having sanctions imposed by an agency of the federal government, including restricting, suspending, limiting or removing a person from the practice of naturopathic medicine or restricting that person's ability to obtain financial remuneration.

(nn) Violating any formal order, probation, consent agreement or stipulation issued or entered into by the board pursuant to this chapter.

(oo) Refusing to submit to a body fluid examination pursuant to a board investigation of alleged substance abuse by a doctor of naturopathic medicine.

(pp) Charging a fee for services not rendered or dividing a professional fee for patient referrals among health care providers or health care institutions or between these providers and institutions or a contractual arrangement that has this effect.

(qq) Obtaining a fee by fraud, deceit or misrepresentation.

(rr) Charging or collecting a clearly excessive fee. In determining whether a fee is clearly excessive, the board shall consider the fee or range of fees customarily charged in this state for similar services, in light of modifying factors such as the time required, the complexity of the service and the skill required to perform the service properly. This subdivision does not apply if there is a clear written contract for a fixed fee between the physician and the patient that was entered into before the service was provided.

(ss) With the exception of heavy metal poisoning, using chelation therapy in the treatment of arteriosclerosis or as any other form of therapy without adequate informed patient consent and without conforming to generally accepted experimental criteria, including protocols, detailed records, periodic analysis of results and periodic review by a medical peer review committee.

(tt) Using a controlled substance unless it is prescribed by another physician for use during a prescribed course of treatment.

(uu) Prescribing, dispensing or administering anabolic androgenic steroids for other than therapeutic purposes.

(vv) Except in an emergency or urgent care situation, prescribing or dispensing a controlled substance to a member of the naturopathic physician's immediate family.

(ww) Prescribing, dispensing or furnishing a prescription medication or a prescription-only device as defined in section 32-1901 to a person unless the licensee first conducts a physical examination of that person or has previously established a doctor-patient relationship. The physical examination may be conducted through telehealth as defined in section 36-3601 unless the examination is for the purpose of obtaining a written certification from the physician for the purposes of title 36, chapter 28.1. This subdivision does not apply to:

(i) A licensee who provides temporary patient supervision on behalf of the patient's regular treating licensed health care professional.

(ii) An emergency medical situation as defined in section 41-1831.

(iii) Prescriptions written to prepare a patient for a medical examination.

(iv) Prescriptions written or prescription medications issued for use by a county or tribal public health department for immunization programs or emergency treatment or in response to an infectious disease investigation, a public health emergency, an infectious disease outbreak or an act of bioterrorism. For the purposes of this item, "bioterrorism" has the same meaning prescribed in section 36-781.

(v) Prescriptions written or antimicrobials dispensed to a contact as defined in section 36-661 who is believed to have had significant exposure risk as defined in section 36-661 with another person who has been diagnosed with a communicable disease as defined in section 36-661 by the prescribing or dispensing physician.

(vi) Prescriptions written by a licensee through a telehealth program that is covered by the policies and procedures adopted by the administrator of a hospital or outpatient treatment center.

(xx) If medical treatment is considered experimental or investigational, failing to include in a patient's record a consent to treatment document that is signed by the patient or the patient's parent or legal guardian and that indicates that the patient or the patient's parent or legal guardian has been informed of the risk of any treatment to be provided and the expected cost of that treatment.

(yy) When issuing a written certification as defined in section 36-2801, failing or refusing to include in the adequate medical records of a patient a copy of all of the following:

(i) The medical records relied on by the physician to support the diagnosis or confirmed diagnosis of the patient's debilitating medical condition.

(ii) The written certification.

(iii) The patient's profile on the Arizona board of pharmacy controlled substances prescription monitoring program database.

(zz) Dispensing a schedule II controlled substance that is an opioid.

§ 32-1502 Naturopathic physicians medical board; appointment; qualifications; term of office; immunity

A. The naturopathic physicians medical board is established consisting of the following members:

1. Four physician members appointed by the governor. Each physician member shall be:

(a) A resident of this state for at least five years immediately preceding the appointment.

(b) A doctor of naturopathic medicine with a degree from a naturopathic school or college approved by the board who has engaged in full-time practice of naturopathic medicine for at least five years immediately preceding the appointment.

2. Three public members appointed by the governor. Each public member shall:

(a) Be a resident of this state for at least five years immediately preceding the appointment.

(b) Not be connected, in any manner, with or have any interest in a school of medicine, a health care institution or any person practicing any form of healing or treatment of bodily or mental ailments.

(c) Demonstrate an interest in the health problems in this state.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. The terms of office of the physician members and the public members are five years to begin and end on June 30. Each physician member and each public member continue to hold office until the appointment and qualification of their successors, subject to the following exceptions:

1. A member of the board may be removed from office if the governor finds the member was guilty of malfeasance, misfeasance or dishonorable conduct.

2. The term of any member automatically ends on resignation, permanent removal from this state or removal from this state for a period of more than six months.

D. There shall be no monetary liability on the part of and no cause of action shall arise against the members of the board, the secretary-treasurer or permanent or temporary personnel of the board for any act done or proceeding undertaken or performed in good faith and in furtherance of the purposes of this chapter.

§ 32-1503 Board organization; meetings; compensation; committees

A. The board shall annually elect, from among its membership, a chairman, a vice-chairman and a secretary-treasurer, who shall hold their respective offices at the pleasure of the board.

B. The board shall hold a regular meeting at least semiannually on a date and at a time and place it designates. In addition, the board may hold special meetings it deems necessary.

C. A majority of the members of the board constitutes a quorum, and a majority vote of a quorum present at any meeting governs all actions taken by the board, except as provided in section 32-1525, subsection I and section 32-1526, subsection A.

D. Members of the board are eligible to receive compensation established by the board of not more than one hundred fifty dollars for each day of actual service in the business of the board.

E. In order to carry out the board's duties and functions, the chairman may establish committees from the board membership and define the duties of these committees.

§ 32-1504 Powers and duties

A. The board shall:

1. Adopt rules that are necessary or proper for the administration of this chapter.

2. Administer and enforce all provisions of this chapter and all rules adopted by the board under the authority granted by this chapter.

3. Adopt rules regarding the qualifications of medical assistants who assist doctors of naturopathic medicine and shall determine the qualifications of medical assistants who are not otherwise regulated.

4. Adopt rules for the approval of schools of naturopathic medicine. The board may incorporate by reference the accrediting standards for naturopathic medical schools published by accrediting agencies recognized by the United States department of education or recognized by the council for higher education accreditation.

5. Adopt rules relating to clinical, internship, preceptorship and postdoctoral training programs, naturopathic graduate medical education and naturopathic continuing medical education programs. The rules for naturopathic continuing medical education programs shall require at least ten hours each year directly related to pharmacotherapeutics.

6. Periodically inspect and evaluate clinical, internship, preceptorship and postdoctoral training programs and naturopathic graduate medical education programs and randomly evaluate naturopathic continuing medical education programs.

7. Adopt rules relating to the dispensing of natural substances, drugs and devices.

8. Adopt rules necessary for the safe administration of intravenous nutrients. These rules shall identify and exclude substances that do not meet the criteria of nutrients suitable for intravenous administration.

9. Adopt and use a seal.

10. Have the full and free exchange of information with the licensing and disciplinary boards of other states and countries and with the American association of naturopathic physicians, the Arizona naturopathic medical association, the association of naturopathic medical colleges, the federation of naturopathic medical licensing boards and the naturopathic medical societies of other states, districts and territories of the United States or other countries.

B. The board may:

1. Adopt rules that prescribe annual continuing medical education for the renewal of licenses issued under this chapter.

2. Employ permanent or temporary personnel it deems necessary to carry out the purposes of this chapter and designate their duties.

3. Adopt rules relating to naturopathic medical specialties and determine the qualifications of doctors of naturopathic medicine who may represent or hold themselves out as being specialists.

4. If reasonable cause exists to believe that the competency of an applicant or a person who is regulated by the board is in question, require that person to undergo any combination of physical, mental, biological fluid and laboratory tests.

5. Be a dues paying member of national organizations that support licensing agencies in their licensing and regulatory duties and pay the travel expenses involved for a designated board member or the executive director to represent the board at the annual meeting of these organizations.

6. Adopt rules for conducting licensing examinations required by this chapter.

7. Delegate to the executive director the board's authority pursuant to sections 32-1509 and 32-1551.

§ 32-1505 Naturopathic physicians medical board fund

(L24, Ch. 222, sec. 17. Eff. until 7/1/28)

A. The naturopathic physicians medical board fund is established. The board shall administer the fund. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies from whatever source that come into the possession of the board in the state general fund and deposit the remaining eighty-five percent in the naturopathic physicians medical board fund.

B. Monies deposited in the naturopathic physicians medical board fund are subject to section 35-143.01.

§ 32-1505 (Version 2) Naturopathic physicians medical board fund

(L24, Ch. 222, sec. 18. Eff. 7/1/28)

A. The naturopathic physicians medical board fund is established. The board shall administer the fund. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies from whatever source that come into the possession of the board in the state general fund and deposit the remaining ninety percent in the naturopathic physicians medical board fund.

B. Monies deposited in the naturopathic physicians medical board fund are subject to section 35-143.01.

§ 32-1507 Change in status; assessment of costs

A. Each person who holds a license or certificate pursuant to this chapter shall inform the board in writing, within thirty days, of any change in status of that person's initial application including any change of name, residence, practice address and telephone number and of each subsequent change of status. A licensee's or a certificate holder's residential address and residential telephone number or numbers are not available to the public unless they are the only address and numbers of record.

B. The board may assess the costs incurred by the board in locating a person who is licensed or certified pursuant to this chapter to that person.

C. The board shall deposit, pursuant to sections 35-146 and 35-147, monies collected pursuant to this section in the naturopathic physicians medical board fund.

§ 32-1508 Display of licenses and certificates

A. A person who holds a license or certificate pursuant to this chapter shall display that document in a conspicuous place that is accessible to view by the public.

B. A person who practices, conducts affairs or is employed at more than one location and who maintains a continuing activity as authorized by the license or certificate shall display a duplicate of that document issued by the board at each location.

§ 32-1509 Executive director; compensation; duties

A. Subject to title 41, chapter 4, article 4, the board shall appoint an executive director who serves at the pleasure of the board. The executive director shall not be a board member and shall not have any financial interests in the practice of naturopathic medicine or the training of naturopathic physicians. The board may authorize the executive director to represent the board and to vote on behalf of the board at meetings of national organizations of which the board is a dues paying member.

B. The executive director and other board staff are eligible to receive compensation as determined pursuant to section 38-611.

C. The executive director or that person's designee shall:

1. Subject to title 41, chapter 4, article 4 and, as applicable, articles 5 and 6, employ, evaluate, dismiss, discipline and direct professional, clerical, technical, investigative and administrative personnel necessary to carry on the work of the board.

2. As directed by the board, prepare and submit recommendations to the board for amendments to this chapter for consideration by the legislature.

3. Subject to title 41, chapter 4, article 4, employ medical consultants and agents necessary to conduct investigations, gather information and perform those duties the executive director determines are necessary and appropriate to enforce this chapter.

4. Issue licenses and certificates pursuant to section 32-1526 to applicants who meet the requirements of this chapter.

5. Maintain a record of board actions and proceedings, including the issuance, denial, renewal, suspension or revocation of licenses and certificates.

6. Manage the board's offices.

7. Prepare minutes, records, reports, registries, directories, books and newsletters and record all board transactions and orders.

8. Collect all monies due and payable to the board.

9. Pay all bills for authorized expenditures of the board and its staff.

10. Prepare an annual budget.

11. Submit a copy of the budget each year to the governor, the speaker of the house of representatives and the president of the senate.

12. Initiate an investigation if evidence appears to demonstrate that a person licensed or certified by the board may be engaged in unprofessional conduct or may be medically incompetent or mentally or physically unable to safely practice medicine.

13. Issue subpoenas if necessary to compel the attendance and testimony of witnesses and the production of books, records, documents and other evidence.

14. Sign and execute and provide assistance to the attorney general in preparing disciplinary orders, rehabilitative orders and notices of hearings as directed by the board.

15. Enter into contracts for goods and services pursuant to title 41, chapter 23 that are necessary to carry out board policies and directives.

16. Execute board directives.

17. Represent the board with the federal government, other states or jurisdictions of the United States, this state, political subdivisions of this state, the news media and the public.

18. Maintain a roster of all persons who are licensed or certified under this chapter that indicates:

(a) The person's name.

(b) The person's current address of record.

(c) The date of issuance and the number of the person's license or certificate.

(d) The status of the person's license or certificate.

19. Maintain an accurate account of all receipts, expenditures and refunds granted pursuant to this chapter.

20. Report dispensing and prescribing restrictions imposed by the board against doctors of naturopathic medicine to other state and federal regulatory agencies.

21. Affix the seal of the board to necessary documents. The imprint of the seal with the signature of the executive director is evidence of official board action.

22. On behalf of the board, enter into stipulated agreements with persons who are under the jurisdiction of the board for the treatment, rehabilitation and monitoring of chemical substance abuse or misuse.

23. Review all complaints filed pursuant to section 32-1551. If delegated by the board, the executive director may dismiss complaints.

24. If delegated by the board, refer cases directly to a formal interview or a formal hearing.

25. If delegated by the board, enter into a consent agreement if there is evidence of danger to the public health and safety.

26. If delegated by the board, grant uncontested requests for retired status or cancellation of a license.

27. Perform all other duties required by the board.

D. Medical consultants and agents appointed pursuant to subsection C, paragraph 3 of this section are eligible to receive compensation determined by the executive director of not more than $200 for each day of service.

E. A person who is aggrieved by an action taken by the executive director may request a board review of that action by filing with the board a written request within thirty days after that person has been notified of the action. Notification shall be by personal delivery or certified mail to the person's last known address on file with the board. The board shall review the decision at its next regularly scheduled meeting and either approve, modify or reject the executive director's action.

Article 2 Licensing

§ 32-1521 Persons and acts not affected by this chapter

This chapter does not apply to:

1. The lawful practice of any other method, system or science of healing by a person licensed under the laws of this state.

2. Any student of naturopathic medicine in the course of taking an approved clinical training program. This exemption does not exempt the student from article 3 of this chapter.

3. Any out-of-state physician licensed by another state or country, if in consultation requested by a doctor of naturopathic medicine.

4. A person who is not licensed or certified by the board and who sells food articles to supplement the diet of a person or who sells a natural substance that does not require a prescription.

5. A person who is a graduate of an approved school of naturopathic medicine and has been awarded the degree of doctor of naturopathic medicine and who, in the course of taking an approved internship training program, an approved preceptorship training program or an approved postdoctoral training program under the direct supervision of a physician, complies with the application requirements of this chapter for the training program and pays the required fees. This exemption does not exempt that person from article 3 of this chapter.

§ 32-1522 Basic qualifications for license

A. To be eligible for a license to practice naturopathic medicine pursuant to this chapter, the applicant shall:

1. Be a graduate of an approved school of naturopathic medicine.

2. Have satisfactorily completed an approved internship, preceptorship or clinical training program in naturopathic medicine.

3. Be physically and mentally fit to practice as a doctor of naturopathic medicine.

4. Not be guilty of any act of unprofessional conduct or any other conduct that would be grounds for refusal, suspension or revocation of a license under this chapter.

5. Not have had a license to practice any profession refused, revoked or suspended by any other state, district or territory of the United States or another country for reasons that relate to the applicant's ability to skillfully and safely practice as a physician in this state.

6. File a completed application pursuant to section 32-1524 and meet the examination requirements provided for in section 32-1525.

B. The board may:

1. Require an applicant to submit credentials or other written or oral proof.

2. Make investigations it deems proper to adequately advise itself with respect to the qualifications of an applicant.

C. Within ninety days after it receives a completed application for initial licensure, the board shall issue a license if the application demonstrates to the board's satisfaction that the applicant complies with this chapter and board rules.

§ 32-1522.01 Temporary licenses; duration of license

A. The executive director may issue a temporary license to any applicant who is seeking licensure, whose application is complete and who has applied in writing for a temporary license. The executive director may issue a temporary license to an applicant only once.

B. A temporary license issued pursuant to this section is effective from the date that the application is approved until the last day of the month in which the board meets to consider the application for licensure.

C. A temporary license shall not be extended, renewed, reissued or allowed to continue in effect beyond the period authorized by this section.

§ 32-1523 Qualifications for license to practice by endorsement; restrictions

A. To be eligible for a license to practice naturopathic medicine pursuant to this chapter by endorsement, the applicant shall:

1. Qualify under section 32-1522.

2. Be licensed to practice as a doctor of naturopathic medicine by either:

(a) Another state, district or territory of the United States.

(b) Another country that requires a written examination that is substantially equivalent to the written examination provided for in section 32-1525.

3. Be active, for at least three years immediately preceding the application, in one or more of the following:

(a) Active practice as a doctor of naturopathic medicine.

(b) An approved internship, preceptorship or clinical training program in naturopathic medicine.

(c) An approved postdoctoral training program in naturopathic medicine.

(d) The resident study of naturopathic medicine at an approved school of naturopathic medicine.

4. Pass the examinations provided for in section 32-1525.

B. If an applicant for licensure pursuant to this section is licensed in another state, district or territory of the United States or another country that does not require that competency be shown in the same elective practice areas as this state, the applicant shall be required to successfully complete examinations in these elective practice areas or, if otherwise qualified, be issued a license that does not include these elective practice areas.

§ 32-1523.01 Foreign graduates; additional qualifications

A. An applicant for a license to practice as a doctor of naturopathic medicine who received naturopathic medical training from an institution outside of the United States or Canada and who is not licensed by any other state, district or territory of the United States shall meet all of the following requirements:

1. Be a graduate of an approved school of naturopathic medicine.

2. Have successfully completed a clinical training program.

3. Be physically and mentally fit to practice as a doctor of naturopathic medicine.

4. Not be guilty of an act of unprofessional conduct or any other conduct that is grounds for refusal, suspension or revocation of a license under this chapter.

5. Not have had a license to practice any profession refused, revoked or suspended by any other state, district or territory of the United States or another country for reasons that relate to that person's ability to skillfully and safely practice as a doctor of naturopathic medicine.

6. Have successfully completed either a two-year internship training program approved by the board or a postdoctoral training program approved by the board.

B. The applicant shall file a complete application and pay the required fees as provided in section 32-1527 and, in addition, shall pay for any costs incurred by the board for investigations or verification of an applicant's credentials and qualifications.

C. The applicant shall pass the examination as required pursuant to section 32-1525, subsection B.

D. The board may:

1. Require the applicant to submit credentials or other written or oral proof that the applicant meets the requirements of this section.

2. Make investigations it deems proper to adequately determine the qualifications of the applicant.

§ 32-1524 Application; deficiencies in application; interview; withdrawal; release of information

A. Each applicant for licensure or certification shall file a verified completed application in the form and style required and supplied by the board and accompanied by the appropriate application fee prescribed in section 32-1527. The filing of an application grants the board the authority to obtain information from any licensing board or agency in any state, district, territory or county of the United States or another country, from the Arizona criminal justice information system in the department of public safety and from the federal bureau of investigation. The fingerprints submitted shall be used to obtain a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety is authorized to exchange this fingerprint data with the federal bureau of investigation.

B. The application shall require the applicant to submit evidence, credentials and other proof necessary to satisfy the board that the applicant meets the requirements of a completed application.

C. The application shall contain the oath of the applicant that:

1. All information contained in the application and evidence submitted with it are true and correct.

2. The credentials submitted were not procured by fraud or misrepresentation or any mistake of which the applicant is aware.

3. The applicant is the lawful holder of the credentials.

D. All applications submitted to the board and any attendant evidence, credentials or other proof submitted with an application are the property of the board and part of the permanent record of the board and shall not be returned to a withdrawing applicant.

E. The board shall promptly inform an applicant, in writing, of the deficiencies, if any, in the application that prevent it from being considered by the board as a completed application.

F. The board may interview the applicant to determine whether the application is sufficient or whether the applicant otherwise qualifies for licensure or for a certificate.

G. Applications are considered withdrawn on the occurrence of any of the following:

1. The request of the applicant.

2. Failure of the applicant to appear for an interview with the board except for good cause.

3. Failure of the applicant to submit a completed application within one year after the date of the mailing by the board of a statement to the applicant of the deficiencies in the application under subsection E of this section.

4. Failure of the applicant to show, within one year after the interview provided for in subsection F of this section, that the completed application is true and correct.

H. Applicants for a license or for a certificate to engage in a preceptorship training program or an internship training program shall submit a fingerprint card in the manner required by the board.

§ 32-1525 Examinations

A. The board shall use the naturopathic physicians licensing examination conducted by the North American board of naturopathic examiners, or its successor agency, for the national examinations required under sections 32-1522, 32-1523 and 32-1523.01. The board may administer its own examination only for those areas that are determined by the board to be necessary for the safe practice of naturopathic medicine and not covered on the naturopathic physicians licensing examination. The board must accept the grade issued by the North American board of naturopathic examiners without adjustment. A board member or staff member shall not have any financial interest in the North American board of naturopathic examiners or the naturopathic physicians licensing examination.

B. An individual who is applying for licensure under section 32-1522 or 32-1523.01 shall take and pass the following portions of the naturopathic physicians licensing examinations or other examinations:

1. Part I basic biomedical science examination.

2. Part II core science and core clinical science examinations.

3. Clinical elective examinations of minor surgery and acupuncture.

C. An individual who is applying for licensure under section 32-1523:

1. Shall take and pass both:

(a) Part I basic biomedical science examination.

(b) Part II core science and core clinical science examinations.

2. Shall take and pass the clinical elective examinations of minor surgery and acupuncture if the person is applying for a license that includes those elective practice areas.

D. An individual who is applying for a license by endorsement pursuant to section 32-1523 and who was licensed in another state or a Canadian province before January 1, 2005, in addition to meeting the requirements of subsection C of this section, shall take and pass an additional sixty-hour course and examination in pharmacotherapeutics.

E. The examinations required for a license under section 32-1522, 32-1523 or 32-1523.01 shall include an examination in Arizona naturopathic jurisprudence that is administered by the board.

F. Examinations for licensure under this chapter shall:

1. Be practical in character and consist of multiple choice and true and false questions.

2. Be designed to ascertain the applicant's knowledge of naturopathic medicine and the applicant's ability to practice naturopathic medicine.

3. Include examination questions that are generally accepted as necessary for a competent knowledge of the practice of naturopathic medicine.

G. The board by rule shall prescribe any subjects on which the applicant must be tested in addition to those required by this section. The board may prescribe rules for conducting its own examinations.

H. An applicant shall obtain a passing score on the national examination and shall obtain a grade of seventy-five percent or more in each subject administered by the board that is not covered on the national examination.

I. An applicant may challenge the applicant's grade on an examination conducted by the board by submitting a written request to the board within sixty days of receiving the grade. If the board upholds the applicant's challenge, it may change, within one hundred twenty days of the challenge, the grade on the examination on the vote of a majority of the full board.

J. An individual applying for licensure under section 32-1522 or 32-1523.01 shall take and complete all of the examinations required by this section within a five-year period immediately preceding the submission of an application for licensure. Each time an applicant files a request with the board to retake any part of an examination, the applicant shall pay the examination fee pursuant to section 32-1527.

K. All examination materials and records of examination grading are confidential and are not public records.

§ 32-1526 Licenses; certificates; issuance; renewal; failure to renew

A. The board shall issue licenses and certificates to applicants who are qualified under this chapter. The board shall only issue licenses under this chapter on the vote of a majority of the full board. Subject to review by the board at its next board meeting, the executive director may issue temporary licenses pursuant to section 32-1522.01, license renewals and certificates to qualified applicants.

B. Except as provided in section 32-4301, a license or certificate issued by the board expires unless renewed each year.

C. Each physician who holds an active license to practice naturopathic medicine in this state shall renew the license on or before January 1 of each year by supplying the executive director with information the board determines is necessary and payment of the annual renewal fee prescribed in section 32-1527.

D. A person who holds a certificate issued by the board shall renew the certificate on or before July 1 of each year by supplying the executive director with information the board determines is necessary and payment of the annual fee prescribed in section 32-1527.

E. A licensee or certificate holder whose license or certificate is current and who is not currently the subject of a probationary order or licensure suspension by the board may request, at any time, and shall be granted cancellation of the license or certificate.

F. A person who fails to renew a license or certificate by the due date shall pay a late renewal fee as prescribed in section 32-1527. Except as provided in section 32-4301, a license or certificate automatically expires if not renewed within sixty days after the due date.

G. The board may reinstate a license or certificate on payment of all renewal and penalty fees as prescribed in section 32-1527 and, if requested by the board, presentation of evidence satisfactory to the board that the applicant for reinstatement of an expired license is professionally able to engage or assist in the practice of naturopathic medicine and still possesses the professional knowledge required. If an applicant for reinstatement of an expired license has not been licensed and actively practicing in a jurisdiction of the United States or Canada in the three years immediately preceding the application, the board may issue a limited license that requires a period of general supervision by another licensed naturopathic physician not to exceed one year.

H. After a hearing, the board may refuse to reinstate a license or certificate for any grounds prescribed in section 32-1551.

I. The board and the executive director may prorate initial annual fees when a new application is approved by dividing the annual amount by twelve and multiplying the results by the number of months remaining until the next annual renewal date.

§ 32-1527 Fees

A. The board by a formal vote at an open public meeting shall establish fees, except as provided in section 32-1530, that the board determines are necessary to provide monies to conduct its business and that do not exceed the following:

1. For application for a license to practice naturopathic medicine and for certification to practice as a specialist, $400.

2. For application for a certificate to dispense, $400.

3. For issuance of a duplicate license or certificate, $100.

4. For endorsement of an Arizona license or certificate for the purpose of applying for a license, certificate or registration in another state or country, $50.

5. For initial issuance of a license or a certificate, $50.

6. For any annual renewal of a license or a certificate, $400.

7. For any late renewal of a license or an additional certificate, $200.

8. For an initial application to conduct or engage in an internship, a preceptorship or a postdoctoral training program, $100.

9. For examination of applicants, the cost of giving the examination to each applicant.

10. For an initial application to be certified as a naturopathic medical assistant, $100.

11. For a copy of the minutes of board meetings during the calendar year, $25 for each set of minutes.

12. For copying records, documents, letters, minutes, applications and files, $.25 per page.

13. For a copy of tapes or computerized diskettes not requiring programming, $100.

14. For written verification of a certificate or license, $5.

15. For submitting fingerprint cards to the department of public safety, the cost required by that department.

B. The board may charge a fee for services that it is not required to provide pursuant to this chapter but that the board determines are appropriate to carry out the intent and purpose of this chapter. A fee imposed pursuant to this subsection shall not exceed the board's costs of rendering the service.

§ 32-1528 Retired licensee; waiver of fees; reinstatement

A. The board may waive a physician's annual renewal fee if the physician has paid all past fees and presents an affidavit to the board that the physician has permanently retired from the practice of naturopathic medicine.

B. A physician whose annual renewal fee has been waived by the board and who is permanently retired from the practice of naturopathic medicine is not required to comply with any continuing medical education requirements of this chapter.

C. If a retired physician who has had the annual renewal fee waived by the board engages in the practice of naturopathic medicine, the physician is subject to the same penalties that are imposed under this chapter on a person who practices naturopathic medicine without a license or without being exempt from licensure.

D. The board may reinstate a retired physician to active practice on payment of the annual renewal fee as prescribed in section 32-1527 and, if requested by the board, on presentation of evidence satisfactory to the board that the applicant for reinstatement of a retired license is professionally able to engage or assist in the practice of naturopathic medicine and possesses the professional knowledge required.

E. If an applicant for reinstatement of a retired license has not been licensed and actively practicing in a jurisdiction of the United States or Canada in the three years immediately preceding the application, the board may issue a limited license that requires a period of general or direct supervision by another licensed naturopathic physician not to exceed one year.

§ 32-1529 Specialists; certification; qualifications

A. To be eligible for a certificate to practice as a specialist, an applicant shall:

1. Hold a current valid license to practice naturopathic medicine under this chapter.

2. Have satisfactorily completed an approved postdoctoral training program in the specialty.

3. Be board certified in the specialty by a specialty board of examiners that is recognized by the board.

4. Be physically and mentally fit to practice the specialty.

5. Not be guilty of any act of unprofessional conduct or any other conduct that would be grounds for refusal, suspension or revocation of a license under this chapter.

6. Not have had any license to practice any profession refused, revoked or suspended by any other state, district or territory of the United States or another country for reasons that relate to the person's ability to skillfully and safely practice as a physician in this state.

7. File a completed application pursuant to section 32-1524.

B. The board may:

1. Require an applicant to submit credentials or other written or oral proof.

2. Make investigations it deems necessary to adequately advise it with respect to an applicant's qualifications.

C. A certificate issued to a physician pursuant to this section shall be concurrently renewed, suspended or revoked with that physician's license to practice naturopathic medicine.

§ 32-1530 Exemptions from certificate to dispense fees

A. A physician who practices at a public health facility operated by this state or a county or at a facility operated by a qualifying community health center established pursuant to section 36-2907.06 and who is exempt from paying registration fees pursuant to section 32-1921, subsection D for a certificate to dispense issued by the board if involved in the dispensing of devices and medications shall annually renew a certificate to dispense pursuant to section 32-1526 but is exempt from the annual renewal fee to dispense under section 32-1527.

B. A physician who is employed by and dispenses devices and medications at a facility that is operated by a not-for-profit corporation and who does not profit from the items dispensed shall annually renew a certificate to dispense pursuant to section 32-1526 but is exempt from the annual renewal fee to dispense under section 32-1527.

Article 3 Regulation

§ 32-1551 Disciplinary action; duty to report; investigatory powers; immunity; hearing; appeal; notice

A. The board on its own motion may investigate any evidence that appears to show that a doctor of naturopathic medicine is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to engage safely in the practice of naturopathic medicine. Any person may, and a doctor of naturopathic medicine, the Arizona naturopathic medical association, a component society of that association and any health care institution shall, report to the board any information that appears to show that a doctor of naturopathic medicine is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to engage safely in the practice of naturopathic medicine. The board or the executive director shall notify the doctor as to the content of the complaint as soon as reasonable. Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages. If requested, the board shall not disclose the name of a person who supplies information regarding a licensee's drug or alcohol impairment. It is an act of unprofessional conduct for any doctor of naturopathic medicine to fail to report as required by this section. The board shall report any health care institution that fails to report as required by this section to that institution's licensing agency.

B. The board or, if delegated by the board, the executive director shall require any combination of mental, physical or oral or written medical competency examinations and conduct necessary investigations including investigational interviews between representatives of the board and the doctor to fully inform itself with respect to any information filed with the board under this section. These examinations may include biological fluid testing and psychological or psychiatric evaluation. The board or, if delegated by the board, the executive director may require the doctor, at the doctor's expense, to undergo assessment by a board approved rehabilitative, retraining or assessment program.

C. If the board finds, based on the information it receives under this section, that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the board may restrict, limit or order a summary suspension of a license pending proceedings for revocation or other action. If the board takes action pursuant to this subsection it shall also serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing before the board or an administrative law judge.

D. If, after completing its investigation, the board finds that the information provided pursuant to subsection A of this section is not of sufficient seriousness to merit disciplinary action against the license of the doctor, the board may take any of the following actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. File a letter of concern.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

E. If the board finds that it can take rehabilitative or disciplinary action without the presence of the doctor at a formal interview, it may enter into a consent agreement with the doctor to limit or restrict the doctor's practice or to rehabilitate the doctor in order to protect the public and ensure the doctor's ability to safely engage in the practice of naturopathic medicine. The board may also require the doctor to successfully complete a board approved rehabilitative, retraining or assessment program.

F. If after completing its investigation the board believes that the information is or may be true, it may request a formal interview with the doctor. If the doctor refuses the invitation or accepts and the results indicate that grounds may exist for revocation or suspension of the doctor's license for more than twelve months, the board may issue a formal complaint and order that a hearing be held pursuant to title 41, chapter 6, article 10. If after completing a formal interview the board finds the information provided under this section is not of sufficient seriousness to merit suspension for more than twelve months or revocation of the license, it may take the following actions:

1. Dismiss if, in the opinion of the board, the complaint is without merit.

2. File a letter of concern.

3. File a letter of reprimand.

4. Issue a decree of censure. A decree of censure is an official action against the doctor's license and may include a requirement for restitution of fees to a patient resulting from violations of this chapter or rules adopted under this chapter.

5. Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the doctor concerned. Probation may include temporary license suspension for not to exceed twelve months, restriction of the doctor's license to practice naturopathic medicine, a requirement for restitution of fees to a patient or education or rehabilitation at the licensee's own expense. If a licensee fails to comply with the terms of probation, the board shall serve the licensee with a written notice that states that the licensee is subject to a formal hearing based on the information considered by the board at the formal interview and any other acts or conduct alleged to be in violation of this chapter or rules adopted by the board pursuant to this chapter including noncompliance with the terms of probation, a consent agreement or a stipulated agreement.

6. Enter into an agreement with the doctor to restrict or limit the doctor's practice or medical activities in order to rehabilitate, retrain or assess the doctor, protect the public and ensure the physician's ability to safely engage in the practice of naturopathic medicine. The board may also require the doctor to successfully complete a board approved rehabilitative, retraining or assessment program at the doctor's own expense pursuant to subsection E of this section.

7. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

G. If the board finds that the information provided in an investigation warrants suspension or revocation of a license issued under this chapter, it must initiate formal proceedings pursuant to title 41, chapter 6, article 10.

H. Any doctor of naturopathic medicine who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable to safely engage in the practice of naturopathic medicine or to be medically incompetent is subject to censure, probation as provided in this section, suspension or revocation of a license or any combination of these under any conditions as the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge the costs of formal hearings to the licensee who it finds to be in violation of this chapter.

I. If the naturopathic physicians board of medical examiners acts to modify any doctor's prescription writing privileges, it shall immediately notify the Arizona state board of pharmacy of the modification.

J. If the board, during the course of any investigation, determines that a criminal violation may have occurred involving the delivery of health care, it shall make the evidence of violations available to the appropriate criminal justice agency for its consideration.

K. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies collected from civil penalties paid pursuant to this chapter in the state general fund.

L. Notice of a complaint and hearing is effective by a true copy of it being sent by certified mail to the doctor's last known address of record in the board's files. Notice of the complaint and hearing is complete on the date of its deposit in the mail.

M. The board may accept the surrender of an active license from a person who admits in writing to any of the following:

1. Being unable to safely engage in the practice of naturopathic medicine.

2. Having committed an act of unprofessional conduct.

3. Having violated this chapter or a board rule.

N. The board may administer the oath to all witnesses and shall keep a written transcript of all oral testimony submitted at the hearing and the original or a copy of all other evidence submitted. The board may waive the technical rules of evidence at any hearing conducted under this section.

O. Except as provided in section 41-1092.08, subsection H, an appeal to the superior court in Maricopa county may be taken from decisions of the board pursuant to title 12, chapter 7, article 6.

§ 32-1551.01 Right to examine and copy evidence; witnesses; documents; testimony; representation

A. In connection with the investigation by the board on its own motion, or as the result of information received pursuant to section 32-1551, the board or its duly authorized agents or employees at all reasonable times may examine and copy any documents, reports, records or other physical evidence of the person it is investigating or that is in possession of any hospital, clinic, physician's office, laboratory, pharmacy, public or private agency, health care institution as defined in section 36-401 and health care provider and that relates to medical competence, unprofessional conduct or the mental or physical ability of a licensee to safely practice naturopathic medicine.

B. For the purpose of all investigations and proceedings conducted by the board:

1. The board on its own initiative or on application of any person involved in the investigation may issue subpoenas to require the attendance and testimony of witnesses or to demand the production for examination or copying of documents or any other physical evidence that relates to medical competence, unprofessional conduct or the mental or physical ability of a licensee to safely practice naturopathic medicine. Within five days after a person is served with a subpoena that person may petition the board to revoke, limit or modify the subpoena. The board shall do so if in its opinion the evidence required does not relate to unlawful practices covered by this chapter, is not relevant to the charge that is the subject matter of the hearing or investigation or does not describe with sufficient particularity the physical evidence required to be produced. Any member of the board or any agent designated by the board may administer oaths or affirmations, examine witnesses and receive evidence.

2. Any person appearing before the board may be represented by counsel.

3. On application by the board or by the person subpoenaed, the superior court may issue an order to either:

(a) Require the subpoenaed person to appear before the board or the duly authorized agent to produce evidence relating to the matter under investigation.

(b) Revoke, limit or modify the subpoena if in the court's opinion the evidence demanded does not relate to unlawful practices covered by this chapter, is not relevant to the charge that is the subject matter of the hearing or investigation or does not describe with sufficient particularity the evidence whose production is required.

C. Patient records, including clinical records, medical reports, laboratory statements and reports, any file, film, other report or oral statement relating to diagnostic findings or treatment of patients, any information from which a patient or the patient's family might be identified and any information received and records or reports kept by the board as a result of the investigation procedure outlined in this chapter are not available to the public.

D. This section and any other law making communications between a physician and a physician's patient privileged does not apply to investigations or proceedings conducted pursuant to this chapter. The board and its employees, agents and representatives must keep in confidence the names of any patients whose records are reviewed during the course of investigations and proceedings pursuant to this chapter.

E. Hospital records, medical staff records, medical staff review committee records and testimony concerning these records and proceedings related to the creation of these records are not available to the public, must be kept confidential by the board and are subject to the same provisions concerning discovery and use in legal actions as are the original records in the possession and control of hospitals, their medical staffs and their medical staff review committees. The board shall use such records and testimony during the course of investigations and proceedings pursuant to this chapter.

F. The court may find a person who does not comply with a subpoena issued pursuant to this section in contempt of court.

§ 32-1552 Reinstatement of a suspended license, certificate or registration; reissuance of a revoked license, certificate or registration

A. A person whose license, certificate or registration has been suspended for an indefinite period of time or revoked by the board may apply to the board for the termination of the suspension or reissuance of the revoked license, certificate or registration under the following terms and conditions:

1. The application has been submitted in writing, has been verified under oath and contains or has attached to it substantial evidence showing that the basis for suspension or revocation has been removed and that the termination of the suspension or reissuance of the revoked license, certificate or registration will not constitute a threat to the public health or safety.

2. The applicant has paid the application fee as prescribed in section 32-1527 and, if requested by the board, has presented evidence satisfactory to the board that the applicant is professionally able to engage or assist in the practice of naturopathic medicine and possesses the professional knowledge required.

3. If it is an application for the termination of a suspension for an indefinite period, the applicant has not applied for termination more frequently than once in any six-month period.

4. If it is an application for the reissuance of a revoked license, certificate or registration, the applicant has not applied for reissuance more frequently than once in any twenty-four-month period.

B. The board may interview an applicant under subsection A of this section.

C. The board shall make its determination on each application as it deems consistent with the public health and safety and just in the circumstances.

§ 32-1553 Civil penalties

The board may impose a civil penalty of not more than one thousand dollars for each violation of this chapter that requires an investigation and hearing, not to exceed a total of ten thousand dollars. All monies collected from civil penalties imposed pursuant to this section shall be deposited in the state general fund.

§ 32-1554 Observance of public health laws and regulations

In diagnosing and treating any disease, injury, ailment, infirmity or other bodily condition, a physician licensed under this chapter shall observe and is subject to all federal, state, county and municipal laws and regulations relating to physicians and to public health in the same manner as required for physicians of other schools of medicine.

§ 32-1555 Unlawful acts; investigations

A. It is unlawful for any person:

1. To practice, attempt to practice or claim to practice as a doctor of naturopathic medicine or any branch of naturopathic medicine without complying with this chapter.

2. Not licensed under this chapter to use the designation "doctor of naturopathic medicine", or the abbreviation "N.M.D.", "doctor of naturopathy", or the abbreviation "N.D.", or "naturopathic physician" or to use any other words, initials, symbols or combination of these that would lead the public to believe that person is licensed to practice naturopathic medicine.

3. To sell or fraudulently obtain or furnish any naturopathic degree or diploma.

4. To operate a school, college or educational institution granting a degree, diploma or certificate in the practice of naturopathic medicine unless it has been approved by the board.

5. To represent that a school, college or educational institution granting a degree, diploma or certificate in naturopathic medicine is approved by the board if the school, college or educational institution has not been approved by the board.

6. To secure or attempt to secure a license, certificate or registration under this chapter by fraud or deceit.

7. To work as a naturopathic medical assistant except under the direct supervision of a doctor of naturopathic medicine licensed pursuant to this chapter.

8. To use the title "medical assistant" or a related abbreviation unless the person is working as a medical assistant under the direct supervision of a doctor of naturopathic medicine.

9. To conduct or engage in an internship, a preceptorship or a clinical training program or a postdoctoral training program in naturopathic medicine unless the internship, preceptorship, clinical training program or postdoctoral training program is approved.

10. To use the title "naturopathic student physician", "naturopathic student intern" or "naturopathic student preceptee" or a related title or abbreviation while engaged in an internship or a preceptorship unless the person is approved and registered by the board for the internship or the preceptorship program.

B. The board may investigate any person to determine if that person is engaged in the unlawful practice of naturopathic medicine. If an investigation indicates that a person may be practicing naturopathic medicine unlawfully, the board shall inform the person of the alleged violation. The board may refer the matter for prosecution regardless of whether the person ceases the unlawful practice of naturopathic medicine.

§ 32-1556 Prosecution for violations

The county attorney of each county shall prosecute all persons charged with violating section 32-1555, but the board may retain its own attorney or investigators to aid in prosecuting a violator. If the board obtains investigators or legal assistance to prosecute or aid in the prosecution for a violation of this chapter, payment for these services shall be made from the naturopathic physicians medical board fund.

§ 32-1557 Violation; classification

A. A person who violates section 32-1555, paragraph 1, 2, 3, 4, 5 or 6 is guilty of a class 5 felony.

B. A person who violates section 32-1555, paragraph 7, 8, 9, 10 or 11 is guilty of a class 6 felony.

§ 32-1558 Injunction

A. An injunction may be issued to enjoin the practice of naturopathic medicine by either of the following classes of persons:

1. A person who is not licensed to practice naturopathic medicine nor exempt from the licensing requirement under this chapter.

2. A person who is licensed, certified or registered under this chapter and whose continued practice will or may cause irreparable damage to the public health and safety.

B. In a petition for injunction under subsection A, paragraph 1 it is sufficient to charge that the respondent on a day certain in a named county engaged in the practice of naturopathic medicine without a license and without being exempt from the licensing requirement under this chapter. For the purpose of this subsection damage or injury as a result of such practice is presumed.

C. A petition for injunction shall be filed in the name of this state by the board or at the request of the attorney general in the county where the respondent resides or may be found.

D. Issuance of an injunction does not relieve the respondent from being subject to any other proceedings under law provided for in this chapter or otherwise. Violation of an injunction shall be punished as for contempt of court.

E. In all other respects injunction proceedings under this section shall be conducted in the same manner as other injunctions.

§ 32-1559 Naturopathic medical assistants; certification; supervision; duties; training; use of title

A. A person who wishes to be certified as a naturopathic medical assistant shall submit an application as prescribed in section 32-1524.

B. A certified naturopathic medical assistant may assist a doctor of naturopathic medicine who is licensed under this chapter.

C. The board by rule may prescribe naturopathic medical treatment procedures that a naturopathic medical assistant certified under this section may perform under the direct supervision of a doctor of naturopathic medicine who is licensed under this chapter if the board determines that these procedures:

1. May be competently performed by the assistant.

2. Do not exceed the procedures that the supervising doctor of naturopathic medicine has been licensed by this state to perform.

D. The board by rule shall prescribe naturopathic medical assistant training requirements. The training requirements for a naturopathic medical assistant may be satisfied through a training program that meets all of the following:

1. Is designed and offered by a physician.

2. Meets or exceeds any of the approved training program requirements specified in rule.

3. Verifies the entry-level competencies of a naturopathic medical assistant as prescribed by rule.

4. Provides written verification to the individual of successful completion of the program.

E. A naturopathic medical assistant may perform clerical tasks without direct supervision if the tasks do not involve treating a person's condition or other procedures that are prohibited under this chapter.

F. A person shall not use the title "medical assistant" or a related abbreviation unless that person is working as a naturopathic medical assistant pursuant to this section or possesses written verification of successful completion of a training program provided pursuant to subsection D of this section.

§ 32-1560 Rules; treatment procedures; students; direct supervision

A. The board by rule may prescribe naturopathic medical treatment procedures that naturopathic medical students may perform under the direct supervision of a physician licensed under this chapter if the board determines that these procedures:

1. May be competently performed by the student.

2. Do not exceed the procedures that the supervising physician has been licensed by this state to perform.

B. A naturopathic medical student may do clerical tasks without direct supervision if the tasks do not involve diagnosing or treating a patient's condition.

§ 32-1561 Internship, clinical fellowship and preceptorship programs; duties; prohibitions

A. A person who is a graduate of an approved school with a degree of doctor of naturopathic medicine and who wishes to engage in an internship program, a clinical fellowship or a preceptorship program shall submit an application for certification as prescribed in section 32-1524.

B. If the application submitted pursuant to subsection A of this section is approved by the board, that person may engage in a board approved internship program, clinical fellowship or preceptorship program under the direct supervision of a physician licensed under this chapter or by a physician licensed pursuant to chapter 13, 17 or 29 of this title.

C. The board by rule may prescribe naturopathic medical treatment procedures that a person who is certified under this section may perform under the direct supervision of a physician licensed under this chapter if the board determines that these procedures:

1. May be competently performed by the graduate.

2. Do not exceed the procedures that the supervising physician has been licensed by this state to perform.

D. A person who is certified under this section may do clerical tasks without direct supervision if the tasks do not involve diagnosing or treating a patient's condition.

E. If the supervising physician of a person who is certified under this section withdraws from direct supervision, the certificate to engage in the training program held by that person is automatically canceled.

F. A person who is certified under this section shall not employ that person's supervising physician and shall not have any financial interest in any business owned by that person's supervising physician.

Article 4 Dispensing of Natural Substances and Devices

§ 32-1581 Dispensing of natural substances, drugs and devices; conditions; civil penalty; dispensing minerals; rules; definitions

A. A doctor of naturopathic medicine may dispense a natural substance, a drug, except a schedule II controlled substance that is an opioid, or a device to a patient for a condition that is being diagnosed or treated by the doctor if:

1. The doctor is certified to dispense by the board and the certificate has not been suspended or revoked by the board.

2. The natural substance, drug or device is dispensed and properly labeled with the following dispenser information:

(a) The dispensing doctor's name, address and telephone number and a prescription number or other method of identifying the prescription.

(b) The date the natural substance, drug or device is dispensed.

(c) The patient's name.

(d) The name and strength of the natural substance, drug or device, directions for proper and appropriate use and any cautionary statements for the natural substance, drug or device. If a generic drug is dispensed, the manufacturer's name must be included.

3. The dispensing doctor enters into the patient's medical record the name and strength of the natural substance, drug or device dispensed, the date the natural substance, drug or device is dispensed and the therapeutic reason.

4. The dispensing doctor keeps all prescription-only drugs, controlled substances and prescription-only devices in a secured cabinet or room, controls access to the cabinet or room by a written procedure and maintains an ongoing inventory of its contents.

B. Except in an emergency, a doctor of naturopathic medicine who dispenses a natural substance, drug or device without being certified to dispense by the board is subject to a civil penalty by the board of not less than three hundred dollars and not more than one thousand dollars for each transaction and may be prohibited from further dispensing for a period of time as determined by the board.

C. Before dispensing a natural substance, drug or device pursuant to this section, the treating doctor shall give the patient or the patient's legal guardian a written prescription and must inform the patient or the patient's legal guardian that the prescription may be filled by the prescribing doctor or the pharmacy of the patient's choice. If the patient chooses to have the medication dispensed by the doctor, the doctor must retrieve the written prescription and place it in a prescription file kept by the doctor.

D. A doctor of naturopathic medicine shall provide direct supervision of a nurse or attendant involved in the dispensing process. For the purposes of this subsection, "direct supervision" means that a doctor of naturopathic medicine is present and makes the determination as to the necessary use or the advisability of the natural substance, drug or device to be dispensed.

E. The board shall enforce this section. The board shall adopt rules regarding the dispensing of a natural substance, drug or device, including the labeling, recordkeeping, storage and packaging of natural substances, that are consistent with the requirements of chapter 18 of this title. The board may conduct periodic inspections of dispensing practices to ensure compliance with this section and applicable rules.

F. This section does not prevent a licensed practical or professional nurse employed by a doctor of naturopathic medicine from assisting in the delivery of natural substances, drugs and devices in accordance with this chapter.

G. Before prescribing or dispensing a mineral to a patient, the treating physician shall perform necessary clinical examinations and laboratory tests to prevent toxicity due to the excessive intake of magnesium, calcium and other minerals. The board shall adopt rules necessary for the safe administration of minerals. These rules shall require prior certification of a physician who prescribes or dispenses minerals to a patient.

H. For the purposes of this section:

1. "Device" means an appliance, apparatus or instrument that is administered or dispensed to a patient by a doctor of naturopathic medicine.

2. "Dispense" means the delivery by a doctor of naturopathic medicine of a natural substance, drug or device to a patient and only for a condition being diagnosed or treated by that doctor, except for free samples packaged for individual use by licensed manufacturers or repackagers, and includes the prescribing, administering, packaging, labeling and security necessary to prepare and safeguard the natural substance, drug or device for delivery to the treating doctor's own patient.

Chapter 15 Nursing

Article 1 Board of Nursing

§ 32-1601 Definitions

In this chapter, unless the context otherwise requires:

1. "Absolute discharge from the sentence" means completion of any sentence, including imprisonment, probation, parole, community supervision or any form of court supervision.

2. "Appropriate health care professional" means a licensed health care professional whose scope of practice, education, experience, training and accreditation are appropriate for the situation or condition of the patient who is the subject of a consultation or referral.

3. "Approval" means that a regulated training or educational program to prepare persons for licensure, certification or registration has met standards established by the board.

4. "Board" means the Arizona state board of nursing.

5. "Certified nurse midwife" means a registered nurse who:

(a) Is certified by the board.

(b) Has completed a nurse midwife education program approved or recognized by the board and educational requirements prescribed by the board by rule.

(c) Holds a national certification as a certified nurse midwife from a national certifying body recognized by the board.

(d) Has an expanded scope of practice in providing health care services for women from adolescence to beyond menopause, including antepartum, intrapartum, postpartum, reproductive, gynecologic and primary care, for normal newborns during the first twenty-eight days of life and for men for the treatment of sexually transmitted diseases. The expanded scope of practice under this subdivision includes:

(i) Assessing patients, synthesizing and analyzing data and understanding and applying principles of health care at an advanced level.

(ii) Managing the physical and psychosocial health care of patients.

(iii) Analyzing multiple sources of data, identifying alternative possibilities as to the nature of a health care problem and selecting, implementing and evaluating appropriate treatment.

(iv) Making independent decisions in solving complex patient care problems.

(v) Diagnosing, performing diagnostic and therapeutic procedures and prescribing, administering and dispensing therapeutic measures, including legend drugs, medical devices and controlled substances, within the scope of the certified nurse midwife practice after meeting requirements established by the board.

(vi) Recognizing the limits of the nurse's knowledge and experience by consulting with or referring patients to other appropriate health care professionals if a situation or condition occurs that is beyond the knowledge and experience of the nurse or if the referral will protect the health and welfare of the patient.

(vii) Delegating to a medical assistant pursuant to section 32-1456.

(viii) Performing additional acts that require education and training as prescribed by the board and that are recognized by the nursing profession as proper to be performed by a certified nurse midwife.

6. "Certified nursing assistant" means a person who is registered on the registry of nursing assistants pursuant to this chapter to provide or assist in delivering nursing or nursing-related services under the supervision and direction of a licensed nursing staff member. Certified nursing assistant does not include a person who:

(a) Is a licensed health care professional.

(b) Volunteers to provide nursing assistant services without monetary compensation.

(c) Is a licensed nursing assistant.

7. "Certified registered nurse" means a registered nurse who has been certified by a national nursing credentialing agency recognized by the board.

8. "Certified registered nurse anesthetist" means a registered nurse who meets the requirements of section 32-1634.03 and who practices pursuant to the requirements of section 32-1634.04.

9. "Clinical nurse specialist" means a registered nurse who:

(a) Is certified by the board as a clinical nurse specialist.

(b) Holds a graduate degree with a major in nursing and completes educational requirements as prescribed by the board by rule.

(c) Is nationally certified as a clinical nurse specialist or, if certification is not available, provides proof of competence to the board.

(d) Has an expanded scope of practice based on advanced education in a clinical nursing specialty that includes:

(i) Assessing clients, synthesizing and analyzing data and understanding and applying nursing principles at an advanced level.

(ii) Managing directly and indirectly a client's physical and psychosocial health status.

(iii) Analyzing multiple sources of data, identifying alternative possibilities as to the nature of a health care problem and selecting appropriate nursing interventions.

(iv) Developing, planning and guiding programs of care for populations of patients.

(v) Making independent nursing decisions to solve complex client care problems.

(vi) Using research skills and acquiring and applying critical new knowledge and technologies to nursing practice.

(vii) Prescribing and dispensing durable medical equipment.

(viii) Consulting with or referring a client to other health care providers based on assessment of the client's health status and needs.

(ix) Facilitating collaboration with other disciplines to attain the desired client outcome across the continuum of care.

(x) Performing additional acts that require education and training as prescribed by the board and that are recognized by the nursing profession as proper to be performed by a clinical nurse specialist.

(xi) Prescribing, ordering and dispensing pharmacological agents subject to the requirements and limits specified in section 32-1651.

10. "Conditional license" or "conditional approval" means a license or approval that specifies the conditions under which the regulated party is allowed to practice or to operate and that is prescribed by the board pursuant to section 32-1644 or 32-1663.

11. "Delegation" means transferring to a competent individual the authority to perform a selected nursing task in a designated situation in which the nurse making the delegation retains accountability for the delegation.

12. "Disciplinary action" means a regulatory sanction of a license, certificate or approval pursuant to this chapter in any combination of the following:

(a) A civil penalty for each violation of this chapter, not to exceed $1,000 for each violation.

(b) Restitution made to an aggrieved party.

(c) A decree of censure.

(d) A conditional license or a conditional approval that fixed a period and terms of probation.

(e) Limited licensure.

(f) Suspension of a license, a certificate or an approval.

(g) Voluntary surrender of a license, a certificate or an approval.

(h) Revocation of a license, a certificate or an approval.

13. "Health care institution" has the same meaning prescribed in section 36-401.

14. "Licensed health aide" means a person who:

(a) Is licensed pursuant to this chapter to provide or to assist in providing nursing-related services authorized pursuant to section 36-2939.

(b) Is the parent, guardian or family member by affinity or consanguinity of the Arizona long-term care system member receiving services who may provide licensed health aide services only to that member and only consistent with that member's plan of care.

(c) Has a scope of practice that is the same as a licensed nursing assistant and may also provide medication administration, tracheostomy care, enteral care and routine ventilator care and therapy and any other tasks approved by the board in rule.

(d) Has supervision requirements that are the same as a certified nursing assistant.

15. "Licensed nursing assistant" means a person who is licensed pursuant to this chapter to provide or assist in delivering nursing or nursing-related services under the supervision and direction of a licensed nursing staff member. Licensed nursing assistant does not include a person who:

(a) Is a licensed health care professional.

(b) Volunteers to provide nursing assistant services without monetary compensation.

(c) Is a certified nursing assistant.

16. "Licensee" means a person who is licensed pursuant to this chapter or in a party state as defined in section 32-1668.

17. "Limited license" means a license that restricts the scope or setting of a licensee's practice.

18. "Medication order" means a written or verbal communication given by a certified registered nurse anesthetist to a health care professional to administer a drug or medication, including controlled substances.

19. "Practical nurse" means a person who holds a practical nurse license issued pursuant to this chapter or pursuant to a multistate compact privilege and who practices practical nursing as defined in this section.

20. "Practical nursing" includes the following activities that are performed under the supervision of a physician or a registered nurse:

(a) Contributing to the assessment of the health status of individuals and groups.

(b) Participating in the development and modification of the strategy of care.

(c) Implementing aspects of the strategy of care within the nurse's scope of practice.

(d) Maintaining safe and effective nursing care that is rendered directly or indirectly.

(e) Participating in the evaluation of responses to interventions.

(f) Delegating nursing activities within the scope of practice of a practical nurse.

(g) Performing additional acts that require education and training as prescribed by the board and that are recognized by the nursing profession as proper to be performed by a practical nurse.

21. "Presence" means within the same health care institution or office as specified in section 32-1634.04, subsection A, and available as necessary.

22. "Registered nurse" or "professional nurse" means a person who practices registered nursing and who holds a registered nurse license issued pursuant to this chapter or pursuant to a multistate compact privilege.

23. "Registered nurse practitioner" means a registered nurse who:

(a) Is certified by the board.

(b) Has completed a nurse practitioner education program approved or recognized by the board and educational requirements prescribed by the board by rule.

(c) If applying for certification after July 1, 2004, holds national certification as a nurse practitioner from a national certifying body recognized by the board.

(d) Has an expanded scope of practice within a specialty area that includes:

(i) Assessing clients, synthesizing and analyzing data and understanding and applying principles of health care at an advanced level.

(ii) Managing the physical and psychosocial health status of patients.

(iii) Analyzing multiple sources of data, identifying alternative possibilities as to the nature of a health care problem and selecting, implementing and evaluating appropriate treatment.

(iv) Making independent decisions in solving complex patient care problems.

(v) Diagnosing, performing diagnostic and therapeutic procedures, and prescribing, administering and dispensing therapeutic measures, including legend drugs, medical devices and controlled substances within the scope of registered nurse practitioner practice on meeting the requirements established by the board.

(vi) Recognizing the limits of the nurse's knowledge and experience by consulting with or referring patients to other appropriate health care professionals if a situation or condition occurs that is beyond the knowledge and experience of the nurse or if the referral will protect the health and welfare of the patient.

(vii) Delegating to a medical assistant pursuant to section 32-1456.

(viii) Performing additional acts that require education and training as prescribed by the board and that are recognized by the nursing profession as proper to be performed by a nurse practitioner.

24. "Registered nursing" includes the following:

(a) Diagnosing and treating human responses to actual or potential health problems.

(b) Assisting individuals and groups to maintain or attain optimal health by implementing a strategy of care to accomplish defined goals and evaluating responses to care and treatment.

(c) Assessing the health status of individuals and groups.

(d) Establishing a nursing diagnosis.

(e) Establishing goals to meet identified health care needs.

(f) Prescribing nursing interventions to implement a strategy of care.

(g) Delegating nursing interventions to others who are qualified to do so.

(h) Providing for the maintenance of safe and effective nursing care that is rendered directly or indirectly.

(i) Evaluating responses to interventions.

(j) Teaching nursing knowledge and skills.

(k) Managing and supervising the practice of nursing.

(l) Consulting and coordinating with other health care professionals in the management of health care.

(m) Performing additional acts that require education and training as prescribed by the board and that are recognized by the nursing profession as proper to be performed by a registered nurse.

25. "Registry of nursing assistants" means the nursing assistants registry maintained by the board pursuant to the omnibus budget reconciliation act of 1987 (P.L. 100-203; 101 Stat. 1330), as amended by the medicare catastrophic coverage act of 1988 (P.L. 100-360; 102 Stat. 683).

26. "Regulated party" means any person or entity that is licensed, certified, registered, recognized or approved pursuant to this chapter.

27. "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere:

(a) Committing fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter.

(b) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

(c) Aiding or abetting in a criminal abortion or attempting, agreeing or offering to procure or assist in a criminal abortion.

(d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.

(e) Being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public.

(f) Having a license, certificate, permit or registration to practice a health care profession denied, suspended, conditioned, limited or revoked in another jurisdiction and not reinstated by that jurisdiction.

(g) Wilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.

(h) Committing an act that deceives, defrauds or harms the public.

(i) Failing to comply with a stipulated agreement, consent agreement or board order.

(j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

(k) Failing to report to the board any evidence that a registered or practical nurse or a nursing assistant is or may be:

(i) Incompetent to practice.

(ii) Guilty of unprofessional conduct.

(iii) Mentally or physically unable to safely practice nursing or to perform nursing-related duties. A nurse who is providing therapeutic counseling for a nurse who is in a drug rehabilitation program is required to report that nurse only if the nurse providing therapeutic counseling has personal knowledge that patient safety is being jeopardized.

(l) Failing to self-report a conviction for a felony or undesignated offense within ten days after the conviction.

(m) Cheating or assisting another to cheat on a licensure or certification examination.

§ 32-1602 Board of nursing; member terms; immunity

A. The Arizona state board of nursing is established consisting of eleven members who are appointed by the governor. Six members shall be registered nurses, including at least one registered nurse practitioner, clinical nurse specialist or certified registered nurse anesthetist. One member shall be a nursing assistant or a nursing assistant educator. Two members shall represent the public and two members shall be licensed practical nurses. Members shall be appointed for a term of five years, to begin and end on June 30.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. On or before May 1 each year and at any other time a vacancy on the board occurs, the governor shall make an appointment or appointments to the board. Appointment to fill a vacancy other than by expiration shall be for the unexpired term. A person shall not serve more than two consecutive terms as a member of the board.

D. The governor may remove any person from the board for neglect of any duty imposed by law or for incompetency or unprofessional or dishonorable conduct.

E. A board member's term automatically ends:

1. On the death of the member.

2. On the member's written resignation submitted to the board president or to the governor.

3. On the member's failure to attend three consecutive board meetings.

F. A board member who acts within the scope of board duties, without malice and in the reasonable belief that the member's action is warranted by law is not subject to civil liability.

§ 32-1603 Qualifications of board members

A. Each registered nurse member of the board shall:

1. Be a resident of the state.

2. Be a graduate of an approved registered nursing program.

3. Be licensed as a registered nurse in this state.

4. Have had at least five years' experience in nursing following graduation, including executive, supervisory or teaching experience in nursing education or nursing service.

5. Have been actively engaged in the practice of nursing or nursing activities for at least three years preceding the appointment.

B. Each licensed practical nurse member of the board shall:

1. Be a resident of this state.

2. Be a graduate of an approved practical nursing program.

3. Be licensed as a licensed practical nurse in this state.

4. Have had at least five years' experience in practical nursing following graduation.

5. Have been actively engaged in the practice of nursing for at least three years preceding the appointment.

C. Each public member of the board shall be a person who:

1. Is not licensed pursuant to chapter 7, 8, 11, 13, 14, 15.1, 16, 17, 18, 19, 19.1, 21, 25 or 29 of this title or this chapter as an individual health care provider.

2. Is not an employee of any health care institution licensed pursuant to title 36, chapter 4 or any authorized insurer providing disability insurance coverage in this state.

3. Does not have a financial interest as a provider in the delivery of health care services.

D. Each licensed nursing assistant or certified nursing assistant member of the board shall either:

1. Be a licensed nursing assistant or a certified nursing assistant pursuant to this chapter and currently practice or have practiced within three years before initial appointment to the board.

2. Within one year before appointment to the board, have been employed as an instructor or coordinator in an approved licensed nursing assistant or certified nursing assistant training program.

E. For at least three years preceding appointment to the board, each registered nurse practitioner or clinical nurse specialist member shall be certified pursuant to this chapter and actively practicing as a registered nurse practitioner, actively engaged in a clinical nurse specialist practice or teaching.

F. Each member of the board shall take and subscribe to the oath prescribed by law for state officers, which shall be filed with the secretary of state.

§ 32-1604 Compensation

Members of the board are eligible to receive compensation not to exceed two hundred dollars per day for each day spent in the discharge of their duties and all expenses necessarily and properly incurred in attending meetings.

§ 32-1605 Organization; meetings

A. The board shall annually elect from its membership a president, vice-president and secretary who assume office the following January and serve a term of one year. Officers may be elected for and serve more than one term. The board shall also appoint and employ an executive director, who is not a member of the board, and other employees necessary to carry on the work of the board.

B. The board shall hold meetings it deems necessary to transact its business. A majority of the board, including one officer, constitutes a quorum.

§ 32-1605.01 Executive director; compensation; powers; duties

A. Subject to title 41, chapter 4, article 4, the board shall appoint an executive director who is not a member of the board. The executive director is eligible to receive compensation set by the board within the range determined under section 38-611.

B. The executive director or the executive director's designee shall:

1. Perform the administrative duties of the board.

2. Subject to title 41, chapter 4, article 4, employ personnel needed to carry out the functions of the board.

3. Issue and renew temporary and permanent licenses, certificates and prescribing or dispensing authority.

4. Issue single state and multistate licenses pursuant to this chapter to applicants who are not under investigation and who meet the qualifications for licensure prescribed in this chapter.

5. Perform other duties as directed by the board.

6. Register certified nursing assistants and maintain a registry of licensed nursing assistants and certified nursing assistants.

7. On behalf of the board, enter into stipulated agreements with a licensee for the confidential treatment, rehabilitation and monitoring of chemical dependency. A licensee who materially fails to comply with a program requirement shall be reported to the board and terminated from the confidential program. Any records of a licensee who is terminated from a confidential program are no longer confidential or exempt from the public records law. Notwithstanding any law to the contrary, stipulated agreements are not public records if the following conditions are met:

(a) The licensee voluntarily agrees to participate in the confidential program.

(b) The licensee complies with all treatment requirements or recommendations, including participation in alcoholics anonymous or an equivalent twelve step program and nurse support group.

(c) The licensee refrains from the practice of nursing until the return to nursing has been approved by the treatment program and the executive director or the executive director's designee.

(d) The licensee complies with all monitoring requirements of the stipulated agreement, including random bodily fluid testing.

(e) The licensee's nursing employer is notified of the licensee's chemical dependency and participation in the confidential program and is provided a copy of the stipulated agreement.

8. Approve nursing assistant training programs that meet the requirements of this chapter.

C. If the board adopts a substantive policy statement pursuant to section 41-1091 and the executive director or designee reports all actions taken pursuant to this subsection to the board at the next regular board meeting, the executive director or designee may:

1. Dismiss a complaint pursuant to section 32-1664 if the complainant does not wish to address the board and either there is no evidence substantiating the complaint or, after conducting an investigation, there is insufficient evidence that the regulated party violated this chapter or a rule adopted pursuant to this chapter.

2. Enter into a stipulated agreement with the licensee or certificate holder for the treatment, rehabilitation and monitoring of the licensee's or certificate holder's abuse or misuse of a chemical substance.

3. Close complaints resolved through settlement.

4. Issue letters of concern.

5. In lieu of a summary suspension hearing, enter into a consent agreement if there is sufficient evidence that the public health, safety or welfare imperatively requires emergency action.

D. The executive director may accept the voluntary surrender of a license, certificate or approval to resolve a pending complaint that is subject to disciplinary action. The voluntary surrender or revocation of a license, certificate or approval is a disciplinary action, and the board shall report this action if required by federal law.

§ 32-1606 Powers and duties of board

A. The board may:

1. Adopt and revise rules necessary to carry into effect this chapter.

2. Publish advisory opinions regarding registered and practical nursing practice and nursing education.

3. Issue limited licenses or certificates if it determines that an applicant or licensee cannot function safely in a specific setting or within the full scope of practice.

4. Refer criminal violations of this chapter to the appropriate law enforcement agency.

5. Establish a confidential program for monitoring licensees who are chemically dependent and who enroll in rehabilitation programs that meet the criteria established by the board. The board may take further action if the licensee refuses to enter into a stipulated agreement or fails to comply with its terms. In order to protect the public health and safety, the confidentiality requirements of this paragraph do not apply if the licensee does not comply with the stipulated agreement.

6. On the applicant's or regulated party's request, establish a payment schedule with the applicant or regulated party.

7. Provide education regarding board functions.

8. Collect or assist in collecting workforce data.

9. Adopt rules to conduct pilot programs consistent with public safety for innovative applications in nursing practice, education and regulation.

10. Grant retirement status on request to retired nurses who are or were licensed under this chapter, who have no open complaint or investigation pending against them and who are not subject to discipline.

11. Accept and spend federal monies and private grants, gifts, contributions and devises to assist in carrying out the purposes of this chapter. These monies do not revert to the state general fund at the end of the fiscal year.

B. The board shall:

1. Approve regulated training and educational programs that meet the requirements of this chapter and rules adopted by the board.

2. By rule, establish approval and reapproval processes for nursing and nursing assistant training programs that meet the requirements of this chapter and board rules.

3. Prepare and maintain a list of approved nursing programs to prepare registered nurses and practical nurses whose graduates are eligible for licensing under this chapter as registered nurses or as practical nurses if they satisfy the other requirements of this chapter and board rules.

4. Examine qualified registered nurse and practical nurse applicants.

5. License and renew the licenses of qualified registered nurse and practical nurse applicants and licensed nursing assistants who are not qualified to be licensed by the executive director.

6. Adopt a seal, which the executive director shall keep.

7. Keep a record of all proceedings.

8. For proper cause, deny or rescind approval of a regulated training or educational program for failure to comply with this chapter or the rules of the board.

9. Adopt rules to approve credential evaluation services that evaluate the qualifications of applicants who graduated from an international nursing program.

10. Determine and administer appropriate disciplinary action against all regulated parties who are found guilty of violating this chapter or rules adopted by the board.

11. Perform functions necessary to carry out the requirements of the nursing assistant and nurse aide training and competency evaluation program as set forth in the omnibus budget reconciliation act of 1987 (P.L. 100-203; 101 Stat. 1330), as amended by the medicare catastrophic coverage act of 1988 (P.L. 100-360; 102 Stat. 683). These functions shall include:

(a) Testing and registering certified nursing assistants.

(b) Testing and licensing licensed nursing assistants.

(c) Maintaining a list of board-approved training programs.

(d) Maintaining a registry of nursing assistants for all certified nursing assistants and licensed nursing assistants.

(e) Assessing fees.

12. Adopt rules establishing acts that may be performed by a registered nurse practitioner or certified nurse midwife, except that the board does not have authority to decide scope of practice relating to abortion as defined in section 36-2151.

13. Adopt rules that prohibit registered nurse practitioners, clinical nurse specialists or certified nurse midwives from dispensing a schedule II controlled substance that is an opioid, except for an implantable device or an opioid that is for medication-assisted treatment for substance use disorders or as provided in section 32-3248.03.

14. Adopt rules establishing educational requirements to certify school nurses.

15. Publish copies of board rules and distribute these copies on request.

16. Require each applicant for initial licensure or certification to submit a full set of fingerprints to the board for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

17. Except for a licensee who has been convicted of a felony that has been designated a misdemeanor pursuant to section 13-604, revoke a license of a person, revoke the multistate licensure privilege of a person pursuant to section 32-1669 or not issue a license or renewal to an applicant who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions three or more years before the date of filing an application pursuant to this chapter.

18. Establish standards to approve and reapprove registered nurse practitioner and clinical nurse specialist programs and provide for surveys of registered nurse practitioner and clinical nurse specialist programs as the board deems necessary.

19. Provide the licensing authorities of health care institutions, facilities and homes with any information the board receives regarding practices that place a patient's health at risk.

20. Limit the multistate licensure privilege of any person who holds or applies for a license in this state pursuant to section 32-1668.

21. Adopt rules to establish competency standards for obtaining and maintaining a license.

22. Adopt rules to qualify and certify clinical nurse specialists.

23. Adopt rules to approve and reapprove refresher courses for nurses who are not currently practicing.

24. Maintain a list of approved medication assistant training programs.

25. Test and certify medication assistants.

26. Maintain a registry and disciplinary record of medication assistants who are certified pursuant to this chapter.

27. Adopt rules to establish the requirements for a clinical nurse specialist to prescribe and dispense drugs and devices consistent with section 32-1651 and within the clinical nurse specialist's population or disease focus.

28. Issue registrations to administer general anesthesia and sedation in dental offices and dental clinics pursuant to section 32-1272 to certified registered nurse anesthetists who have national board certification in anesthesiology.

C. The board may conduct an investigation on receipt of information that indicates that a person or regulated party may have violated this chapter or a rule adopted pursuant to this chapter. Following the investigation, the board may take disciplinary action pursuant to this chapter.

D. The board may limit, revoke or suspend the privilege of a nurse to practice in this state granted pursuant to section 32-1668.

E. Failure to comply with any final order of the board, including an order of censure or probation, is cause for suspension or revocation of a license or a certificate.

F. The president or a member of the board designated by the president may administer oaths in transacting the business of the board.

§ 32-1607 Preceptorship awareness campaign; definitions

A. The board shall develop a preceptorship awareness campaign that educates advance practice registered nurse professionals who are licensed pursuant to this chapter on how to become and the benefits of being a preceptor for graduate nursing students.

B. For the purposes of this section:

1. "Graduate student" means an individual who is matriculating at the graduate level at an accredited institution of higher education in this state and who is seeking an advance nursing degree to become licensed as an advance practice registered nurse pursuant to this chapter.

2. "Nursing preceptor" means a nursing professional who is licensed pursuant to this chapter and who maintains an active practice in this state.

3. "Preceptorship":

(a) Means a mentoring experience in which a nursing preceptor provides a program of personalized instruction, training and supervision to a graduate student to enable the student to obtain an advance nursing degree to become licensed as an advance practice registered nurse pursuant to this chapter.

(b) Does not include mentoring for medical services that are prescribed in section 36-2301.01, subsection C, paragraph 1.

§ 32-1608 Examinations; notice

The board shall contract with a private entity to conduct licensure and nursing assistant registration examinations. The board shall require as part of this contract that the entity provide notice of the examination procedure to applicants.

§ 32-1609 Register of licenses and registrations; change of address

A. The executive director shall keep a register of licenses and registrations for each person who holds an Arizona nursing license or who is a licensed nursing assistant or a certified nursing assistant that includes the following:

1. Each person's current address.

2. Licenses, certificates and registrations granted or revoked.

B. The register shall be open during office hours to public inspection.

C. Each regulated person shall notify the board in writing within thirty days after each change in the person's address.

§ 32-1611 Board of nursing fund

(L24, Ch. 222, sec. 19. Eff. until 7/1/28)

A. Before the end of each month, pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies received by the board from fees pursuant to section 32-1643 in the state general fund and deposit the remaining eighty-five percent in the board of nursing fund.

B. Monies deposited in the board of nursing fund are subject to section 35-143.01.

C. Monies from civil penalties received pursuant to section 32-1606 shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

§ 32-1611 (Version 2) Board of nursing fund

(L24, Ch. 222, sec. 20. Eff. 7/1/28)

A. Before the end of each month, pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies received by the board from fees pursuant to section 32-1643 in the state general fund and deposit the remaining ninety percent in the board of nursing fund.

B. Monies deposited in the board of nursing fund are subject to section 35-143.01.

C. Monies from civil penalties received pursuant to section 32-1606 shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

Article 2 Licensing and Certification

§ 32-1631 Acts and persons not affected by chapter

This chapter does not prohibit:

1. Auxiliary or supportive services by maids, porters, messengers, busboys, nurses aides or attendants working under competent supervision in a licensed hospital, or gratuitous care by friends or family members of a sick or infirm person or incidental care of the sick by a domestic servant or person employed primarily as a housekeeper, as long as these persons do not practice registered nursing or claim to be licensed practical nurses.

2. Nursing assistance in cases of emergency.

3. Nursing by duly enrolled prelicensure students under competent supervision in approved nursing programs.

4. The practice of nursing in this state by any legally qualified nurse of another state whose engagement requires the nurse to accompany and care for a patient temporarily residing in this state during one such engagement not to exceed six months, if the nurse does not claim to be a nurse licensed to practice in this state.

5. Nursing by any legally qualified nurse of another state who is employed by the government of the United States or any bureau, division or agency of the United States government in the discharge of that person's official duties.

6. Caring for the sick in connection with the practice of religion or treatment by prayer.

7. Registered nurse practitioner, certified nurse midwife or clinical nurse specialist practice by duly enrolled students under competent supervision as part of a registered nurse practitioner, certified nurse midwife or clinical nurse specialist program if the program is approved by a United States nursing regulatory agency in the state of the parent institution and the student is authorized to practice registered nursing in this state.

8. Nursing education provided to students in this state that is provided electronically or in person by a person who resides in another state and who is licensed to practice registered nursing in that state if the provision of education does not exceed six consecutive months in any calendar year and does not include supervising or providing clinical care.

9. Consulting services that are provided to persons in this state electronically or in person by a person who resides in another state and who is licensed to practice registered nursing in that state if the provision of services does not exceed six consecutive months in any calendar year and does not include direct patient care.

§ 32-1632 Qualifications of registered nurse; application for license

An applicant for a license to practice as a registered nurse shall file with the board a verified written application accompanied by the prescribed fee and shall submit satisfactory proof that:

1. The applicant has completed satisfactorily the basic curriculum in an approved registered nursing program and holds a diploma or degree from that program.

2. The applicant, if convicted of one or more felonies, has received an absolute discharge from the sentences for all felony convictions three or more years before the date of filing an application pursuant to this chapter.

3. If the applicant has been convicted of a felony pursuant to section 13-604, the court has entered judgment of conviction for a class 1 misdemeanor.

§ 32-1633 Examination of registered nurses

A. An applicant shall pass an examination in subjects relating to the duties and services of a registered nurse taught in an approved registered nursing program as the board determines.

B. If an applicant successfully passes the examination and meets the other requirements established pursuant to this chapter, the board shall issue a license to practice registered nursing to the applicant.

C. If an applicant fails to pass the examination prescribed in subsection A within two years after completing the nursing program, the board may require the applicant to complete additional educational requirements as prescribed by the board by rule.

D. If on review of credible evidence the board believes that the security of a licensure examination has been compromised and that the credibility of examination results is in question, the board may require retesting of applicants.

§ 32-1634 Licensing out-of-state registered nurses

A. The board may issue a license to practice registered nursing to an applicant who has been duly licensed or registered as a registered nurse in another state or a territory of the United States if in the opinion of the board the applicant meets the qualifications required of a registered nurse in this state pursuant to sections 32-1632 and 32-1633.

B. The board shall not issue a license to an applicant who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions three or more years before the date of filing the application.

§ 32-1634.01 Qualifications of international registered nurses; application for license; examination

A. An applicant for a license to practice as a registered nurse who is a graduate of an international nursing program, who is not licensed in another state or territory of the United States and who does not meet the requirements of section 32-1633, subsection A shall satisfy the following requirements:

1. Submit a report from a credential evaluation agency approved by the board that provides information that the applicant's nursing program is equivalent to an approved program or, if the applicant graduated from a Canadian nursing program, submit a passing score on the English language version of the Canadian nurses association testing service examination or an equivalent Canadian nurse licensure examination as determined by the board.

2. Meets English language proficiency requirements prescribed by the board by rule.

3. Submit a report from an agency recognized by the board verifying that any license held in an international jurisdiction is in good standing and is of equivalent status to a license issued in the United States.

4. Pass an examination as provided in section 32-1633, subsection A.

5. Submit a verified statement that indicates whether the applicant has been convicted of a felony and, if convicted of one or more felonies, that indicates the date of absolute discharge from the sentences for all felony convictions.

B. If the applicant satisfies the requirements of subsection A of this section and meets the other requirements established pursuant to this chapter and board rules, except those requiring graduation from a board approved program, the board shall issue a license to practice as a registered nurse to the applicant.

C. On review of credible evidence, the board may require retesting of an applicant if the board believes that the security of an international licensure examination has been compromised and that the credibility of the examination results is in question.

§ 32-1634.02 Qualifications of international registered nurses; applicants for licensure; endorsement

A. An applicant for a license to practice as a registered nurse who is a graduate of an international nursing program and who is licensed in another state or territory of the United States or, if not licensed, has met the requirements prescribed in section 32-1633, subsection A shall satisfy the following requirements:

1. Submit a report from a credential evaluation agency approved by the board that provides information indicating that the applicant's nursing program is equivalent to an approved registered nursing program or, if the applicant graduated from a Canadian nursing program, submit a passing score on the English language version of the Canadian nurses association testing service examination or an equivalent Canadian nurse licensure examination as determined by the board.

2. Submit a report from an agency recognized by the board verifying the status of any nursing license held by the applicant.

3. Pass an examination as prescribed in section 32-1633, subsection A and satisfy English language proficiency requirements as prescribed by the board by rule.

4. Submit a verified statement that indicates whether the applicant has been convicted of a felony and, if convicted of one or more felonies, that indicates the date of absolute discharge from the sentences for all felony convictions.

B. If the applicant satisfies the requirements of subsection A of this section and meets the other requirements prescribed in this chapter and pursuant to board rule, except those requiring graduation from a board approved program pursuant to section 32-1632, paragraph 1, the board shall issue a license to practice as a registered nurse to the applicant.

§ 32-1634.03 Qualifications for certified registered nurse anesthetist; temporary certificate

A. The board may certify a registered nurse who is licensed pursuant to this chapter as a certified registered nurse anesthetist if the registered nurse meets the following requirements:

1. Submits an application as prescribed by the board.

2. Has completed a program in the science of anesthesia accredited by the council on accreditation of nurse anesthesia educational programs or another national accrediting body recognized by the board.

3. Is certified by a national certifying body such as the national board of certification and recertification for nurse anesthetists or another national certifying body recognized by the board.

4. Pays the certification fee prescribed pursuant to section 32-1643.

B. The board may issue a temporary certificate to a person who meets the requirements of subsection A, paragraphs 2 and 3 of this section. A temporary certificate expires on the date specified in the certificate and may be renewed at the discretion of the executive director.

§ 32-1634.04 Certified registered nurse anesthetist; scope of practice; physician and surgeon immunity

A. A certified registered nurse anesthetist may administer anesthetics under the direction of and in the presence of a physician or surgeon in connection with the preoperative, intraoperative or postoperative care of a patient or as part of a procedure performed by a physician or surgeon in the following settings:

1. A health care institution.

2. An office of a health care professional who is licensed pursuant to chapter 7, 11, 13 or 17 of this title.

3. An ambulance.

B. In connection with the preoperative, intraoperative or postoperative care of a patient or as part of the procedure in the settings prescribed in subsection A of this section, a certified registered nurse anesthetist as part of the care or procedure may:

1. Issue a medication order for drugs or medications, including controlled substances, to be administered by a licensed, certified or registered health care provider.

2. Assess the health status of an individual as that status relates to the relative risks associated with anesthetic management of an individual.

3. Obtain informed consent.

4. Order and evaluate laboratory and diagnostic test results and perform point-of-care testing that the certified registered nurse anesthetist is qualified to perform.

5. Order and evaluate radiographic imaging studies that the certified registered nurse anesthetist is qualified to order and interpret.

6. Identify, develop, implement and evaluate an anesthetic plan of care for a patient to promote, maintain and restore health.

7. Take action necessary in response to an emergency situation.

8. Perform therapeutic procedures that the certified registered nurse anesthetist is qualified to perform.

C. A certified registered nurse anesthetist's prescribing authority to administer anesthetics or to issue a medication order as prescribed by this section does not include the ability to write or issue a prescription for medications to be filled or dispensed for a patient for use outside of the settings prescribed in subsection A of this section.

D. A physician or surgeon is not liable for any act or omission of a certified registered nurse anesthetist who orders or administers anesthetics under this section.

§ 32-1635 Temporary license to practice registered nursing

A. The board may issue a temporary license to practice registered nursing to an applicant for a license who meets the qualifications for licensing specified in sections 32-1632 and 32-1633 and board rules.

B. Temporary licenses expire on the date specified in the license and may be renewed at the discretion of the executive director.

§ 32-1635.01 Temporary certifications; expiration

A. The board may issue a temporary nurse practitioner, certified nurse midwife or clinical nurse specialist certificate, including prescribing and dispensing authority, or a temporary clinical nurse specialist certificate to a registered nurse who holds an unencumbered temporary or permanent license and who meets the requirements for certification and prescribing and dispensing authority as prescribed by this chapter and board rules.

B. A temporary certificate expires on the date specified in the certificate and may be renewed at the discretion of the executive director.

§ 32-1635.02 Provisional licensure or certification; qualifications; notification; termination; definitions

A. The board shall issue a provisional license or certificate to an advanced practice registered nurse, a registered nurse or a licensed practical nurse within five business days after the board receives a complete application and the fees required by the board for an out-of-state nurse who is seeking licensure or certification if all of the following apply and the person includes a sworn declaration attesting to the completeness and veracity of the information:

1. The person holds a current license or certificate to practice as an advanced practice registered nurse, a registered nurse or a licensed practical nurse in at least one other state of the United States, and the license or certificate is in good standing in all states of the United States in which the person holds a license or certificate.

2. The person provides proof of a valid and unencumbered license or certificate in another state of the United States through board review of a national nurse license verification system or in another manner determined by the board as sufficient proof that the person is in good standing with all licensing entities that have issued the person a license or certificate.

3. The person has not had a license or certificate revoked or denied and has not voluntarily surrendered a license or certificate in any state of the United States.

4. The person does not have a complaint or investigation pending before a licensing entity in any state of the United States. If the person has any complaint or investigation pending, the five-day time frame does not apply and the board may determine whether the person can safely practice nursing in this state.

5. The person has submitted a full set of fingerprints to the board for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

6. The person is a resident of this state or attests in the application that the person is physically working or has accepted an offer to physically work in this state.

B. If an advanced practice registered nurse, a registered nurse or a licensed practical nurse applies for a provisional license or certificate pursuant to this section and had discipline imposed by any licensing entity in another state of the United States, the five-day time frame prescribed in subsection A of this section does not apply and the board may determine whether the person can safely practice nursing in this state.

C. The board shall acknowledge by written or oral communication to an applicant for a provisional license or certificate pursuant to this section the date of receipt of the application for provisional licensure or certification. Within five business days after receipt of the application, the board shall provide to the applicant either:

1. A notice of provisional licensure or certification approval.

2. A written explanation of the reason or reasons the applicant is not eligible for provisional licensure or certification. The board shall further investigate the application as necessary to determine whether the applicant may be licensed or certified pursuant to this section or another section of this article.

D. A person who applies for or receives a provisional license or certificate pursuant to this section is subject to the laws regulating the person's practice in this state and is subject to the board's jurisdiction.

E. A provisional license or certificate issued pursuant to this section is valid only in this state and allows the person to whom it is issued to practice as an advanced practice registered nurse, a registered nurse or a licensed practical nurse in this state.

F. Except as provided in subsection G of this section, a provisional license or certificate issued pursuant to this section may be converted to a regular, single-state license or certificate six months after the provisional license or certificate is issued and is valid until the regular license or certificate is required to be renewed pursuant to this article.

G. The board may terminate a provisional license or certificate issued pursuant to this section within six months after issuance if the board determines that there is a reasonable basis to require restrictions on or the termination of the provisional license or certificate.

H. Any fees required pursuant to this section are waived for veterans of the United States armed forces and spouses of active duty members of the United States armed forces.

I. For the purposes of this section:

1. "Licensing entity" means the regulatory body of a state of the United States that is responsible for regulating the practice of nursing and advanced practice registered nursing.

2. "Resident" means a person who meets one of the following:

(a) Has obtained a driver license or nonoperating identification license in this state.

(b) Has registered to vote in this state.

(c) Declares this state as the person's home state for federal tax purposes.

(d) Has lived in this state for more than six months in the preceding year.

(e) Is active military or an active military spouse who is currently posted in this state.

§ 32-1636 Use of titles or abbreviations

A. Only a person who holds a valid and current license to practice registered nursing in this state or in a party state pursuant to section 32-1668 may use the title "nurse", "registered nurse", "graduate nurse" or "professional nurse" or the abbreviation "R.N.".

B. Only a person who holds a valid and current license to practice practical nursing in this state or in a party state as defined in section 32-1668 may use the title "nurse", "licensed practical nurse" or "practical nurse" or the abbreviation "L.P.N.".

C. Only a person who holds a valid and current certificate issued pursuant to this chapter to practice as a registered nurse practitioner in this state may use the title "nurse practitioner", "registered nurse practitioner" or "nurse midwife", if applicable, or use any words or letters to indicate the person is a registered nurse practitioner. A person who is certified as a registered nurse practitioner shall indicate by title or initials the specialty area of certification.

D. Except as provided in subsection C of this section, only a person who holds a valid and current certificate issued pursuant to this chapter to practice as a certified nurse midwife in this state may use the title "certified nurse midwife" or "nurse midwife" or use any words or letters to indicate the person is a certified nurse midwife.

E. Only a person who holds a valid and current certificate issued pursuant to this chapter to practice as a clinical nurse specialist may use the title "clinical nurse specialist" or use any words or letters to indicate the person is a clinical nurse specialist. A person who is certified as a clinical nurse specialist shall indicate by title or initials the specialty area of certification.

F. A nurse who is granted retirement status shall not practice nursing but may use the title "registered nurse-retired" or "RN-retired" or "licensed practical nurse-retired" or "LPN-retired", as applicable.

§ 32-1637 Qualifications of practical nurse; application for license

An applicant for a license to practice as and assume the title of a licensed practical nurse shall file with the board a verified written application accompanied by the prescribed fee and shall submit satisfactory proof that the applicant:

1. Has satisfactorily completed the basic curriculum in an approved practical or professional nursing program and holds a diploma, certificate or degree from that program.

2. If convicted of one or more felonies, has received an absolute discharge from the sentences for all felony convictions three or more years before the date of filing the application.

§ 32-1638 Examination of practical nurses

A. An applicant shall pass an examination in subjects relating to the duties and services of a practical nurse taught in an approved practical nursing program as the board determines.

B. If an applicant successfully passes the examination and meets the other requirements established pursuant to this chapter, the board shall issue a license to practice as a licensed practical nurse to the applicant.

C. If an applicant fails to pass the examination prescribed in subsection A within two years after completing the nursing program, the board may require the applicant to complete additional educational requirements as prescribed by the board by rule.

D. On review of credible evidence, the board may require retesting of applicants if the board believes that the security of a licensure examination has been compromised and that the credibility of examination results is in question.

§ 32-1639 Licensing out-of-state practical nurses

A. The board may issue a license to practice as a practical nurse to an applicant who has been duly licensed as a practical nurse, or licensed to perform similar services and duties under a different title, in another state or territory of the United States, if in the opinion of the board the applicant meets qualifications required of a licensed practical nurse in this state.

B. The board shall not issue a license to practice practical nursing to an applicant who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions three or more years before the date of filing an application.

§ 32-1639.01 Qualifications of international graduate practical nurses; application for license; examination

A. An applicant for a license to practice as a practical nurse who is a graduate of an international nursing program, who is not licensed in another state or territory of the United States and who does not meet the requirements of section 32-1638, subsection A must satisfy the following requirements:

1. Submit a report from a credential evaluation agency approved by the board that provides information that the applicant's nursing program is equivalent to an approved practical or registered nursing program, or if the applicant graduated from a Canadian nursing program, submit a passing score on the English language version of the Canadian nurses association testing service examination or an equivalent Canadian nurse licensure examination as determined by the board.

2. Meets English language proficiency requirements prescribed by the board by rule.

3. Submit a report from an agency recognized by the board verifying that any license held in an international jurisdiction is in good standing and is of equivalent status to a license issued in the United States.

4. Pass an examination as prescribed in section 32-1638.

5. Submit a verified statement that indicates if the applicant has been convicted of a felony and, if convicted of one or more felonies, that indicates the date of absolute discharge from the sentences for all felony convictions.

B. The board shall issue a license to practice as a practical nurse to an applicant who does not meet the requirements of section 32-1637, paragraph 1, relating to graduation from a board approved program, if the applicant otherwise meets the requirements of subsection A of this section and the other requirements established pursuant to this chapter.

C. On review of credible evidence, the board may require retesting of an applicant if the board believes that the security of an international licensure examination has been compromised and that the credibility of the examination results is in question.

§ 32-1639.02 Qualifications of international graduate practical nurses; application for license; endorsement

A. An applicant for a license to practice as a practical nurse who is a graduate of an international nursing program and who is licensed in another state or territory of the United States shall satisfy the following requirements:

1. Submit a report from a credential evaluation agency approved by the board that provides information that the applicant's nursing program is equivalent to an approved practical or registered nursing program or, if the applicant graduated from a Canadian nursing program, submit a passing score on the English language version of the Canadian nurses association testing service examination or an equivalent Canadian nurse licensure examination as determined by the board.

2. Submit a report from an agency recognized by the board verifying the status of any nursing license held by the applicant.

3. Pass an examination as prescribed in section 32-1638 and satisfy English language proficiency requirements as prescribed by the board by rule.

4. Submit a verified statement that indicates if the applicant has been convicted of a felony and, if convicted of one or more felonies, that indicates the date of absolute discharge from the sentences for all felony convictions.

B. Except for the requirement relating to graduation from a board approved program as prescribed pursuant to section 32-1637, paragraph 1, if the applicant satisfies the requirement of subsection A of this section and meets the other requirements established pursuant to this chapter, the board shall issue a license to practice as a practical nurse.

§ 32-1639.03 Qualifications of military service applicants; definition

A. The board shall issue a license to practice as a practical nurse to an applicant who does not meet the requirements of section 32-1637, paragraph 1, relating to graduation from a board approved program, if the applicant otherwise meets all of the following requirements:

1. Submits an application required by section 32-1637 and a verified statement that indicates whether the applicant has been convicted of a felony and, if convicted of one or more felonies, indicates the date of absolute discharge from the sentences for all felony convictions.

2. Passes the examination prescribed by section 32-1638.

3. Answers questions related to whether the person is currently under investigation by another health care related board and whether any disciplinary action has been taken by any jurisdiction related to health professions.

4. Has completed a military program of basic medical training and was awarded a military occupational specialty and performed in that occupational specialty at a level that is substantially equivalent to the academic requirements for a license to practice as a practical nurse or completed any clinical education equivalency or bridge courses determined by the board to be necessary to obtain equivalency.

5. Engaged in the active practice of practical nursing for at least two of the five years before the date of filing the application. An applicant's relevant military service experience in the discharge of the applicant's official duties must be credited in the calculation of the number of years the applicant has practiced as a practical nurse for the purposes of this paragraph.

6. Has not committed an act in any jurisdiction that constitutes grounds for refusal, suspension or revocation of a license to practice as a practical nurse in this state.

7. Has paid any fees required by the board.

B. The board may consider the recommendations in the guide to the evaluation of educational experiences in the armed services published by the American council on education or the council's successor organization when determining if the applicant substantially meets the academic requirements for a license to practice as a practical nurse.

C. The board may issue a temporary license to practice as a licensed practical nurse to an applicant who meets the qualifications in subsection A of this section and as prescribed by the board by rule. The applicant may practice under a temporary license until any of the following occurs:

1. The applicant's license is granted or denied by the board.

2. The temporary license expires pursuant to section 32-1640, subsection B.

3. The applicant fails to comply with the terms of the temporary license.

D. This section does not prohibit a military service applicant from applying for a license to practice as a practical nurse as otherwise prescribed in this article.

E. For the purposes of this section, "military service" means service as an active member of any of the following:

1. The armed forces of the United States.

2. A reserve component of the armed forces of the United States.

3. The national guard.

§ 32-1640 Temporary license to practice as a licensed practical nurse

A. The board may issue a temporary license to practice as a licensed practical nurse to an applicant for a license who meets the qualifications for licensing specified in section 32-1637 and as prescribed by the board by rule.

B. Temporary licenses expire on the date specified in the license and may be renewed at the discretion of the executive director.

§ 32-1642 Renewal of license or registration; failure to renew

A. Except as provided in section 32-4301, a registered and practical nurse licensee shall renew the license every four years on or before April 1. If a licensee does not renew the license on or before May 1, the licensee shall pay an additional fee for late renewal as prescribed in section 32-1643. If a licensee does not renew the license on or before August 1, the license expires. It is a violation of this chapter for a person to practice nursing with an expired license.

B. An applicant for renewal of a registered or practical nursing license shall submit a verified statement that indicates whether the applicant has been convicted of a felony and, if convicted of one or more felonies, indicates the date of absolute discharge from the sentences for all felony convictions.

C. On receipt of the application and fee, the board shall verify the accuracy of the application and issue to the applicant an active renewal license, which shall be effective for the following four calendar years. The renewal license shall render the holder a legal practitioner of nursing, as specified in the license, during the period stated on the certificate of renewal. A licensee who fails to secure a renewal license within the time specified may secure a renewal license by making verified application as the board prescribes by furnishing proof of being qualified and competent to act as a registered or practical nurse, and additional information and material as required by the board, and by payment of the prescribed fee.

D. Except as provided in section 32-4301, a licensed nursing assistant shall renew the license every two years on the last day of the licensed nursing assistant's birth month. An applicant for renewal shall submit a verified statement that indicates whether the applicant has been convicted of a felony and, if convicted of one or more felonies, indicates the date of absolute discharge from the sentences for all felony convictions. On receipt of the application and fee, the board shall issue a renewal license to qualified applicants.

E. Except as provided in section 32-4301, a certified nursing assistant shall file an application to renew the certified nursing assistant registration every two years on the last day of the certified nursing assistant's birth month. An applicant for renewal shall submit a verified statement that indicates whether the applicant has performed nursing or nursing-related services within the previous twenty-four consecutive months and whether the individual's registry entry includes documented findings of abuse, neglect or misappropriation of property. On receipt of the application, the board shall issue a renewal registration to each qualified renewal applicant.

F. On written request to the board, the name and license of a licensee in good standing may be transferred to an inactive list. The licensee shall not practice during the time the license is inactive, and renewal fees do not accrue. If an inactive licensee wishes to resume the practice of nursing, the board shall renew the license on satisfactory showing that the licensee is then qualified and competent to practice and on payment of the current renewal fee. The licensee shall also file with the board a verified statement that indicates whether the applicant has been convicted of a felony and, if convicted of one or more felonies, that indicates the date of absolute discharge from the sentences for all felony convictions.

§ 32-1643 Fees; penalties

A. The board by formal vote at its annual meeting shall establish fees not to exceed the following amounts:

1. Initial application for certification for certified registered nurse anesthetist, registered nurse practitioner and clinical nurse specialist in specialty areas, $150.

2. Initial application for school nurse certification, $75.

3. Initial application for license as a registered nurse, $150.

4. Initial application for license as a practical nurse, $150.

5. Application for reissuance of a registered or practical nursing license, $150.

6. Application for renewal of a registered nurse or a practical nurse license before expiration, $160.

7. Application for renewal of license after expiration, $160, plus a late fee of $50 for each month the license is lapsed, but not to exceed a total of $200.

8. Application for renewal of a school nurse certificate, $50.

9. Application for temporary registered nurse, practical nurse or licensed nursing assistant license, $50.

10. Retaking the registered nurse or practical nurse examination, $100.

11. Issuing a license to an applicant to become a licensed nursing assistant or licensed health aide, $50.

12. Issuing a license to a licensed nursing assistant or licensed health aide applicant for renewal, $50.

13. Application for renewal of a licensed nursing assistant or licensed health aide license after its expiration, $25 for each year it is expired, not to exceed a total of $100.

14. Issuing a duplicate license or certificate, $25.

15. Copying a nursing program transcript, $25.

16. Verification to another state or country of licensure for endorsement, certification for advanced practice or licensed nursing assistant licensure, $50.

17. Providing verification to an applicant for licensure or for licensed nursing assistant licensure by endorsement, $50.

18. Application to prescribe and dispense medication and application to prescribe medication, $150.

19. Application for renewal of prescribing and dispensing medication privileges before expiration and application for renewal of prescribing medication privileges before expiration, $20.

20. Application for renewal of prescribing and dispensing medication privileges after expiration and application for renewal of prescribing medication privileges after expiration, $35.

21. Issuing an inactive license, $50.

22. Writing the national council licensing examination for the first time, $150.

23. Sale of publications prepared by the board, $50.

24. Providing notary services, $2, or as allowed under section 41-316.

25. Copying records, documents, letters, minutes, applications and files, $.50 a page.

26. Processing fingerprint cards, $50.

27. Registration for board seminars, $100.

28. Failing to notify the board of a change of address pursuant to section 32-1609, $25.

B. The board may collect from the drawer of a dishonored check, draft order or note an amount allowed pursuant to section 44-6852.

§ 32-1644 Approval of nursing schools and nursing programs; application; maintenance of standards

A. The board shall approve all new prelicensure nursing, nurse practitioner and clinical nurse specialist programs pursuant to this section. A postsecondary educational institution or school in this state that is accredited by an accrediting agency recognized by the United States department of education desiring to conduct a registered nursing, practical nursing, nurse practitioner or clinical nurse specialist program shall apply to the board for approval and submit satisfactory proof that it is prepared to meet and maintain the minimum standards prescribed by this chapter and board rules.

B. The board or its authorized agent shall conduct a survey of the institution or program applying for approval and shall submit a written report of its findings to the board. If the board determines that the program meets the requirements prescribed in its rules, it shall approve the applicant as either a registered nursing program, practical nursing program, nurse practitioner program or clinical nurse specialist program in a specialty area.

C. A nursing program approved by the board may also be accredited by a national nursing accrediting agency recognized by the board. If a prelicensure nursing program is accredited by a national nursing accrediting agency recognized by the board, the board does not have authority over it unless any of the following occurs:

1. The board receives a complaint about the program relating to patient safety.

2. The program falls below the standards prescribed by the board in its rules.

3. The program loses its accreditation by a national nursing accrediting agency recognized by the board.

4. The program allows its accreditation by a national nursing accrediting agency recognized by the board to lapse.

D. From time to time the board, through its authorized employees or representatives, may resurvey all approved programs in the state and shall file written reports of these resurveys with the board. If the board determines that an approved nursing program is not maintaining the required standards, it shall immediately give written notice to the program specifying the defects. If the defects are not corrected within a reasonable time as determined by the board, the board may take either of the following actions:

1. Approve the program but restrict the program's ability to admit new students until the program complies with board standards.

2. Remove the program from the list of approved nursing programs until the program complies with board standards.

E. All approved nursing programs shall maintain accurate and current records showing in full the theoretical and practical courses given to each student.

F. The board does not have regulatory authority over the following approved nurse practitioner or clinical nurse specialist programs unless the conditions prescribed in subsection C are met:

1. A nurse practitioner or clinical nurse specialist program that is part of a graduate program in nursing accredited by an agency recognized by the board if the program was surveyed as part of the graduate program accreditation.

2. A nurse practitioner or clinical nurse specialist program that is accredited by an agency recognized by the board.

§ 32-1645 Licensed nursing assistants; certified nursing assistants; licensed health aides; qualifications

A. A person who wishes to practice as a licensed nursing assistant shall file a verified application on a form prescribed by the board and accompanied by the fee required pursuant to section 32-1643. The applicant shall also submit a verified statement that indicates whether the applicant has been convicted of a felony and, if convicted of one or more felonies, indicates the date of absolute discharge from the sentences for all felony convictions. The applicant shall also submit proof satisfactory to the board that the applicant meets all of the following:

1. Satisfactorily completed the basic curriculum of a program approved by the board.

2. Received a valid certificate from a training program approved by the board.

3. Satisfactorily completed a competency examination pursuant to section 32-1647.

B. A person who wishes to practice as a certified nursing assistant shall file a verified form prescribed by the board and authorized by the omnibus budget reconciliation act of 1987 (P.L. 100-123; 101 Stat. 1330), as amended by the medicare catastrophic coverage act of 1988 (P.L. 100-360; 102 Stat. 683). The applicant shall also submit proof satisfactory to the board that the applicant meets all of the following:

1. Satisfactorily completed the basic curriculum of a program approved by the board.

2. Received a valid certificate from a training program approved by the board.

3. Satisfactorily completed the nursing assistant competency examinations pursuant to section 32-1647.

C. A person who wishes to practice as a licensed health aide shall file a verified application on a form prescribed by the board and accompanied by the fee required pursuant to section 32-1643. The applicant may allow the applicant's prospective employer to discuss the application with the board. The applicant shall also submit proof satisfactory to the board that the applicant meets all of the following:

1. Is a parent, guardian or family member of an individual who is under twenty-one years of age and who is eligible to receive continuous skilled nursing or skilled nursing respite care services pursuant to section 36-2939, subsection G.

2. Satisfactorily completed the basic curriculum of and received a valid certificate from a training program approved by the board that includes medication administration, tracheostomy care, enteral care and therapy for persons under twenty-one years of age, and any other tasks approved by the board.

3. Satisfactorily completed a competency examination approved by the board.

D. A person who wishes to practice as a certified nursing assistant or a licensed nursing assistant shall be at least sixteen years of age.

§ 32-1646 Licensed nursing assistants; certified nursing assistants; board powers

A. In the regulation of licensed nursing assistants, the board may:

1. Investigate allegations of violations of this article and refer criminal violations of this article to the appropriate law enforcement agency.

2. File a letter of concern if the board believes there is insufficient evidence to support direct action against the licensed nursing assistant's license but sufficient evidence for the board to notify the licensed nursing assistant of its concern.

3. Deny a license or refuse to renew a license or take disciplinary action if a licensed nursing assistant commits an act of unprofessional conduct.

4. Issue a temporary licensed nursing assistant license to an applicant who meets the qualifications for licensure specified in section 32-1645. The license expires six months after the date of issuance and may be renewed at the discretion of the board.

5. In addition to any other disciplinary action it may take, impose a civil penalty of not more than one thousand dollars for each violation of this chapter.

B. The board shall revoke a license of a person or not issue or renew a license to an applicant who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions three or more years prior to the date of filing an application pursuant to this chapter.

C. In the regulation of certified nursing assistants the board may:

1. Investigate allegations of abuse, neglect or misappropriation of property and refer criminal violations to the appropriate law enforcement agency.

2. File a letter of concern if the board believes there is insufficient evidence to support direct action against the certified nursing assistant's registration but sufficient evidence for the board to notify the nursing assistant of its concern.

3. Pursuant to the omnibus budget reconciliation act of 1987 (P.L. 100-203; 101 Stat. 1330), as amended by the medicare catastrophic coverage act of 1988 (P.L. 100-360; 102 Stat. 683), indicate on the registration the existence of any substantiated complaints against the certified nursing assistant in compliance with title 41, chapter 6, article 10.

§ 32-1647 Examination of licensed nursing assistants and certified nursing assistants

A. An applicant for licensure as a licensed nursing assistant or an applicant for registration as a certified nursing assistant who wishes to be placed on the registry of nursing assistants shall pass both the written and manual skills competency examinations on subjects contained in the licensed nursing assistant or certified nursing assistant training program approved by the board.

B. The board may issue a licensed nursing assistant license to a person who successfully passes both examinations and meets all other requirements as prescribed in this article.

C. If a certified nursing assistant applicant fails to pass either the written or the manual skills competency examination within two years after completing an educational program, the applicant shall complete to the board's satisfaction an approved nursing assistant training program before the applicant may take that examination again.

§ 32-1648 Licensed nursing assistants; certified nursing assistants; acceptance of out-of-state licenses

A. The board may issue a license to a nursing assistant who has a current certificate or an equivalent document issued by another state if the board receives an application pursuant to section 32-1645 and determines that the applicant meets the qualifications of this article.

B. The board shall not issue a license to an applicant under subsection A of this section who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions three or more years prior to the date of filing the application.

C. The board may register a person as a certified nursing assistant who has been listed on the nursing assistant registry maintained in another state if the nursing assistant provides to the board current proof of registration or an equivalent document issued by another state and the board receives an application pursuant to section 32-1645 and determines that the applicant meets the qualifications of this article.

§ 32-1649 Use of title or abbreviations by a licensed nursing assistant and certified nursing assistant

A. Only a person who is licensed by the board to practice as a licensed nursing assistant shall use the title "licensed nursing assistant" and the abbreviation "LNA".

B. Only a person who is registered by the board to practice as a certified nursing assistant shall use the title "certified nursing assistant" and the abbreviation "CNA".

§ 32-1650 Certified medication assistants; medication administration; delegation

A. A nurse who is licensed pursuant to this chapter may delegate medication administration to a licensed nursing assistant who is also certified by the board as a medication assistant or to a student in an approved medication assistant program under the following conditions:

1. The recipient of the medication is a resident of a licensed nursing care institution as defined in section 36-401.

2. Delegated medications are limited to:

(a) Regularly scheduled medications, including controlled substances, by oral, topical, nasal, otic, optic and rectal routes.

(b) Following the nurse's assessment of the resident's need for the medication and at the direction of the nurse, as-needed medications for bowel care or over-the-counter analgesics. The nurse shall evaluate the effect of the medication and document findings in the resident's record.

3. The delegating nurse maintains accountability for the delegation and management of the resident's medications.

B. A nurse may not delegate to a medication assistant:

1. If, in the professional judgment of the nurse after evaluating the condition of and the level of services required for the resident and the conduct and skills of the certified medication assistant or medication assistant student, the delegation would pose an unacceptable risk of harm or jeopardize the health or welfare of the resident or if safe delegation cannot be accomplished.

2. The first dose of a new medication or of a previously prescribed medication if the dosage is changed.

3. Any new medication that arrives from the pharmacy without ensuring that it reflects the original prescription.

4. As-needed medications except as provided in this section.

5. The counting of controlled substances at the beginning and end of a shift and any act associated with obtaining multiple doses of controlled substances.

6. Any medication delivered by a needle or by intradermal, subcutaneous, intramuscular, intravenous, intrathecal and intraosseous routes.

7. The administration of any medication that must be inserted into a nasogastric tube or gastric tube.

8. Changing oxygen settings or turning oxygen on or off.

9. The administration of inhalant medications.

10. The regulation of intravenous fluids or the programming of insulin pumps.

11. The administration of topical patches or topical medications that require a sterile dressing or assessment of skin condition.

12. The administration of sublingual medications.

13. The administration of any medication that requires a mathematical conversion between units of measurement to determine the correct dose.

§ 32-1650.01 Medication assistant training programs; requirements

A. The board shall approve medication assistant training programs pursuant to this section and rules adopted by the board. An entity that applies for approval of a medication assistant training program must be either:

1. A postsecondary education institution in this state that is accredited by an accrediting agency recognized by the United States department of education.

2. A postsecondary school that is licensed by the state board for private postsecondary education.

3. A long-term care facility that is licensed by the department of health services.

B. An applicant for a medication assistant training program must:

1. Submit an application on a form and in a manner prescribed by the board that shows compliance with this chapter and board rules and that is accompanied by a fee prescribed by the board by rule.

2. Implement a minimum one hundred hour curriculum that is consistent with the curriculum requirements of a board pilot program that allows licensed nursing assistants to administer medication or that is specified by the board by rule.

3. Schedule classroom instruction so that there are not more than four hours of classroom instruction in any one day.

4. Implement admission criteria that are consistent with the requirements of section 32-1650.02.

5. Screen potential students for mathematics and reading comprehension skills that are necessary to understand written material and to safely administer medications.

6. Administer at least three separate unit examinations and a comprehensive final examination that students must pass to progress in the program.

7. Provide course policies regarding attendance, clinical supervision, course completion requirements, passing examination scores and makeup examinations.

8. Ensure that each course instructor has an unrestricted registered nursing license or multistate privilege and at least forty hours of experience administering medications in a licensed long-term care facility.

9. Meet other requirements as specified by the board by rule.

C. The board or its authorized agent shall review the application and provide a written analysis of the applicant's compliance with the requirements in this section and board rules. The board shall notify the applicant of any deficiencies in the application. If the board determines that the program meets the requirements prescribed in this chapter and board rules and that approval is in the best interest of the public, the board shall approve the program for a period of not more than four years.

D. The board's authorized employees or representatives periodically may review and conduct a site visit of all approved medication assistant training programs in this state and file written reports of these reviews or site visits with the board. If the board determines that an approved medication assistant training program is not maintaining the required standards, it shall immediately give written notice to the program specifying the defects. If the defects are not corrected within a reasonable time as determined by the board, the board may take either of the following actions:

1. Restrict the program's ability to admit new students until the program complies with board standards.

2. Revoke the approval of the program for a period of two years.

E. An approved medication assistant training program must maintain accurate and current records for at least five years, including the full theoretical and practical curriculum provided to each student.

F. The training program must furnish a copy of a student's certificate of completion to the board within ten days after each student successfully completes a medication assistant training program.

§ 32-1650.02 Certified medication assistants; qualifications

A. A person who wishes to practice as a medication assistant must:

1. File an application on a form prescribed by the board accompanied by a fee prescribed by the board by rule.

2. Submit a statement that indicates whether the applicant has been convicted of a felony and, if convicted of one or more felonies, that indicates the date of absolute discharge from the sentences for all felony convictions.

3. Have worked as a licensed nursing assistant or certified nursing assistant for at least six months before the start of the medication assistant training program, be a licensed nursing assistant and have no outstanding complaints or restrictions on the license.

4. Hold one of the following:

(a) A diploma issued by a high school that is located in the United States.

(b) A general equivalency diploma issued in the United States.

(c) A transcript from a nationally or regionally accredited postsecondary school located in the United States or from the United States military that documents successful completion of college-level coursework.

(d) Evidence of completing at least twelve years of education in a foreign country and, if the language of that country was other than English, a passing score on an English language proficiency examination as determined by the board.

5. Be at least eighteen years of age.

6. Provide documentation directly from the program of successfully completing an approved medication assistant training program or a portion of an approved nursing education program equivalent to the medication assistant training course.

7. Have passed a competency examination pursuant to section 32-1650.03.

B. The board may certify a person as a medication assistant who meets the qualifications of this section for a period of not more than two years. The person's medication assistant certification expires at the same time the person's licensed nursing assistant license expires.

§ 32-1650.03 Certified medication assistants; examination requirements

A. An applicant for certification as a medication assistant must pass a written and manual skills competency examination on subjects contained in a medication assistant training program approved by the board.

B. The board may contract with a private entity to conduct the medication assistant competency examination. The board shall require as part of this contract that the entity provide notice of the examination procedure to applicants.

C. If an applicant fails to pass a competency examination within one year after completing a medication assistant training program, the applicant must complete to the board's satisfaction an approved medication assistant training program before the applicant may take the examination again.

§ 32-1650.04 Certified medication assistants; reciprocity

A nursing assistant who is certified as a medication assistant by another state qualifies for certification as a certified medication assistant in this state if the applicant:

1. Completes an application on a board prescribed form and submits the fee prescribed by the board by rule.

2. Submits evidence of completion of at least a one hundred hour curriculum in a medication assistant training program.

3. Successfully passes the board approved competency examination pursuant to section 32-1650.03.

4. Has practiced as a medication assistant for at least one hundred sixty hours in the past two years or has completed the training program in the past year.

5. Meets all other requirements of this chapter and board rules.

§ 32-1650.05 Certified medication assistants; recertification; unprofessional conduct

A. A medication assistant who is certified pursuant to 32-1650.02 may apply for recertification before expiration of the certificate if that person:

1. Submits an application on a board prescribed form accompanied by a fee prescribed by the board by rule before the expiration date on the certificate.

2. Submits an affidavit with the application that the applicant has practiced as a medication assistant for at least one hundred sixty hours in the past two years.

3. Submits an affidavit with the application that indicates whether the applicant has been convicted of a felony, and if convicted of one or more felonies, indicates the date of absolute discharge from the sentences for all felony convictions.

4. Submits a current application to renew the person's licensed nursing assistant license or holds a current licensed nursing assistant license or is registered as a certified nursing assistant and was certified as a medication assistant before July 1, 2016.

B. If the current medication assistant certificate has expired, the board may assess a late fee as prescribed by the board by rule. A medication assistant who practices with an expired certificate commits an act of unprofessional conduct and is subject to disciplinary action pursuant to this chapter.

§ 32-1650.06 Certified medication assistants; disciplinary actions; civil penalties; revocation or denial of certificate

A. In regulating medication assistants, the board may:

1. Refer criminal violations to the appropriate law enforcement agency.

2. File a letter of concern if the board believes there is insufficient evidence to support direct action against a medication assistant's certificate but sufficient evidence for the board to notify a medication assistant of its concern.

3. Issue a decree of censure for a violation of this chapter or board rules.

4. Deny certification or recertification or take disciplinary action if a medication assistant commits an act of unprofessional conduct.

5. In addition to any other disciplinary action it may take, impose a civil penalty of not more than one thousand dollars.

B. The board shall revoke a certificate or deny an application for certification or recertification of a person who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions three or more years before the date of filing an application pursuant to this chapter.

§ 32-1650.07 Certified medication assistants; use of title

Only a person who is certified as a medication assistant by the board may:

1. Use the title "certified medication assistant" or "medication assistant-certified".

2. Use the initials "C.M.A.".

3. Claim to be certified as a medication assistant.

§ 32-1651 Clinical nurse specialists; prescribing and dispensing authority

A. The board shall grant to a clinical nurse specialist the privileges to prescribe and dispense pharmacological agents if the clinical nurse specialist has both of the following:

1. The education and training equivalent to the requirements to prescribe and dispense pharmacological agents of a registered nurse practitioner, including successful completion of a nationally accredited advanced practice nursing program.

2. Certification as a clinical nurse specialist by a nationally recognized certification entity approved by the board.

B. A clinical nurse specialist may prescribe only for patients of a licensed health care institution that uses the services of the clinical nurse specialist as follows:

1. In a licensed hospital or hospital-affiliated outpatient treatment center, a behavioral health inpatient facility, a nursing care institution, a recovery care center, a behavioral health residential facility or a hospice, the clinical nurse specialist may prescribe or dispense only pursuant to the protocols or standards applicable to clinical nurse specialists of the health care institution and may not prescribe a schedule II controlled substance that is an opioid except pursuant to protocols or standing orders of the health care institution. The prescribing and dispensing of opioid or benzodiazepine prescriptions by a clinical nurse specialist is limited to treating patients while at the licensed health care institution and is not for patients to use or fill outside of the licensed health care institution except pursuant to discharge protocols of the institution.

2. In a licensed outpatient treatment center or an outpatient treatment center that is exempt from licensure pursuant to section 36-402, subsection A, paragraph 12 that provides behavioral health services or qualifies pursuant to federal law as a community health center, the clinical nurse specialist may prescribe or dispense only pursuant to the protocols or standards applicable to clinical nurse specialists of the health care institution. The clinical nurse specialist may not prescribe a schedule II controlled substance that is an opioid except for an opioid that is for medication-assisted treatment for substance use disorders.

C. A clinical nurse specialist shall report any required information relating to dispensing or prescribing medication pursuant to the health care institution's protocols.

D. For the purposes of this section, a health care institution's protocols relating to the dispensing and prescribing authority of a clinical nurse specialist shall be developed with the input of the institution's medical director.

Article 2.1 Nurse Licensure Compact

§ 32-1660 Nurse licensure compact

The nurse licensure compact is adopted and enacted into law as follows:

Article I

Findings and Declaration of Purpose

A. The party states find that:

1. The health and safety of the public are affected by the degree of compliance with and the effectiveness of enforcement activities related to state nurse licensure laws.

2. Violations of nurse licensure laws and other laws regulating the practice of nursing may result in injury or harm to the public.

3. The expanded mobility of nurses and the use of advanced communication technologies as part of our nation's health care delivery system require greater coordination and cooperation among states in the areas of nurse licensure and regulation.

4. New practice modalities and technology make compliance with individual state nurse licensure laws difficult and complex.

5. The current system of duplicative licensure for nurses practicing in multiple states is cumbersome and redundant for both nurses and states.

6. Uniformity of nurse licensure requirements throughout the states promotes public safety and public health benefits.

B. The general purposes of this compact are to:

1. Facilitate the states' responsibility to protect the public's health and safety.

2. Ensure and encourage the cooperation of party states in the areas of nurse licensure and regulation.

3. Facilitate the exchange of information between party states in the areas of nurse regulation, investigation and adverse actions.

4. Promote compliance with the laws governing the practice of nursing in each jurisdiction.

5. Invest all party states with the authority to hold a nurse accountable for meeting all state practice laws in the state in which the patient is located at the time care is rendered through the mutual recognition of party state licenses.

6. Decrease redundancies in the consideration and issuance of nurse licenses.

7. Provide opportunities for interstate practice by nurses who meet uniform licensure requirements.

Article II

Definitions

As used in this compact:

A. "Adverse action" means any administrative, civil, equitable or criminal action permitted by a state's laws that is imposed by a licensing board or other authority against a nurse, including actions against an individual's license or multistate licensure privilege such as revocation, suspension, probation, monitoring of the licensee or limitation on the licensee's practice, or any other encumbrance on licensure affecting a nurse's authorization to practice, including issuance of a cease and desist action.

B. "Alternative program" means a nondisciplinary monitoring program approved by a licensing board.

C. "Coordinated licensure information system" means an integrated process for collecting, storing and sharing information on nurse licensure and enforcement activities related to nurse licensure laws that is administered by a nonprofit organization composed of and controlled by licensing boards.

D. "Current significant investigative information" means either:

1. Investigative information that a licensing board, after a preliminary inquiry that includes notification and an opportunity for the nurse to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction.

2. Investigative information that indicates that the nurse represents an immediate threat to public health and safety regardless of whether the nurse has been notified and had an opportunity to respond.

E. "Encumbrance" means a revocation or suspension of, or any limitation on, the full and unrestricted practice of nursing imposed by a licensing board.

F. "Home state" means the party state that is the nurse's primary state of residence.

G. "Licensing board" means a party state's regulatory body responsible for issuing nurse licenses.

H. "Multistate license" means a license to practice as a registered or a licensed practical/vocational nurse issued by a home state licensing board that authorizes the licensed nurse to practice in all party states under a multistate licensure privilege.

I. "Multistate licensure privilege" means a legal authorization associated with a multistate license that allows the practice of nursing as either a registered nurse or a licensed practical/vocational nurse in a remote state.

J. "Nurse" means a registered nurse or a licensed practical/vocational nurse, as those terms are defined by each party state's practice laws.

K. "Party state" means any state that has adopted this compact.

L. "Remote state" means a party state, other than the home state.

M. "Single-state license" means a nurse license issued by a party state that authorizes practice only within the issuing state and does not include a multistate licensure privilege to practice in any other party state.

N. "State" means a state, territory or possession of the United States and the District of Columbia.

O. "State practice laws" means a party state's laws, rules and regulations that govern the practice of nursing, define the scope of nursing practice and establish the methods and grounds for imposing discipline. State practice laws do not include requirements necessary to obtain and retain a license, except for qualifications or requirements of the home state.

Article III

General Provisions and Jurisdiction

A. A multistate license to practice registered or licensed practical/vocational nursing issued by a home state to a resident in that state will be recognized by each party state as authorizing a nurse to practice as a registered nurse or as a licensed practical/vocational nurse, under a multistate licensure privilege, in each party state.

B. A state must implement procedures for considering the criminal history records of applicants for initial multistate license or licensure by endorsement. Such procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant's criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state's criminal records.

C. Each party state shall require that, in order for an applicant to obtain or retain a multistate license in the home state, the applicant meets all of the following criteria:

1. Meets the home state's qualifications for licensure or renewal of licensure as well as all other applicable state laws.

2. either:

(a) Has graduated or is eligible to graduate from a licensing board-approved registered nurse or licensed practical/vocational nurse prelicensure education program.

(b) Has graduated from a foreign registered nurse or licensed practical/vocational nurse prelicensure education program that both:

(i) Has been approved by the authorized accrediting body in the applicable country.

(ii) has been verified by an independent credentials review agency to be comparable to a licensing board-approved prelicensure education program.

3. If a graduate of a foreign prelicensure education program not taught in English or if English is not the individual's native language, Has successfully passed an English proficiency examination that includes the components of reading, speaking, writing and listening.

4. Has successfully passed an NCLEX-RN® or NCLEX-PN® examination or recognized predecessor, as applicable.

5. Is eligible for or holds an active, unencumbered license.

6. Has submitted, in connection with an application for initial licensure or licensure by endorsement, fingerprints or other biometric data for the purpose of obtaining criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state's criminal records.

7. Has not been convicted or found guilty, or has entered into an agreed disposition, of a felony offense under applicable state or federal criminal law.

8. Has not been convicted or found guilty, or has entered into an agreed disposition, of a misdemeanor offense related to the practice of nursing as determined on a case-by-case basis.

9. Is not currently enrolled in an alternative program.

10. Is subject to self-disclosure requirements regarding current participation in an alternative program.

11. Has a valid United States social security number.

D. All party states shall be authorized, in accordance with existing state due process law, to take adverse action against a nurse's multistate licensure privilege such as revocation, suspension or probation or any other action that affects a nurse's authorization to practice under a multistate licensure privilege, including cease and desist actions. If a party state takes such an action, it shall promptly notify the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system shall promptly notify the home state of any such actions by remote states.

E. A nurse practicing in a party state must comply with the state practice laws of the state in which the client is located at the time service is provided. The practice of nursing is not limited to patient care, but shall include all nursing practice as defined by the state practice laws of the party state in which the client is located. The practice of nursing in a party state under a multistate licensure privilege will subject a nurse to the jurisdiction of the licensing board, the courts and the laws of the party state in which the client is located at the time service is provided.

F. Individuals not residing in a party state shall continue to be able to apply for a party state's single-state license as provided under the laws of each party state. However, the single-state license granted to these individuals will not be recognized as granting the privilege to practice nursing in any other party state. This compact does not affect the requirements established by a party state for the issuance of a single-state license.

G. Any nurse holding a home state multistate license on the effective date of this compact may retain and renew the multistate license issued by the nurse's then-current home state, provided that:

1. A nurse who changes the nurse's primary state of residence after this Compact's effective date must meet all applicable requirements in subsection C of this article to obtain a multistate license from a new home state.

2. A nurse who fails to satisfy the multistate licensure requirements in subsection C of this article due to a disqualifying event occurring after this compact's effective date shall be ineligible to retain or renew a multistate license, and the nurse's multistate license shall be revoked or deactivated in accordance with applicable rules adopted by the interstate commission of nurse licensure compact administrators.

Article IV

Applications for Licensure in a Party State

A. On application for a multistate license, the licensing board in the issuing party state shall ascertain, through the coordinated licensure information system, whether the applicant has ever held, or is the holder of, a license issued by any other state, whether there are any encumbrances on any license or multistate licensure privilege held by the applicant, whether any adverse action has been taken against any license or multistate licensure privilege held by the applicant and whether the applicant is currently participating in an alternative program.

B. A nurse may hold a multistate license, issued by the home state, in only one party state at a time.

C. If a nurse changes the nurse's primary state of residence by moving between two party states, the nurse must apply for licensure as follows in the new home state and the multistate license issued by the prior home state will be deactivated in accordance with applicable rules adopted by the commission:

1. The nurse may apply for licensure in advance of a change in primary state of residence.

2. A multistate license shall not be issued by the new home state until the nurse provides satisfactory evidence of a change in the nurse's primary state of residence to the new home state and satisfies all applicable requirements to obtain a multistate license from the new home state.

D. If a nurse changes the nurse's primary state of residence by moving from a party state to a nonparty state, the multistate license issued by the prior home state will convert to a single-state license that is valid only in the former home state.

Article V

Additional Authorities Invested in Party State Licensing Boards

A. In addition to the other powers conferred by state law, a licensing board shall have the authority to:

1. Take adverse action against a nurse's multistate licensure privilege to practice within that party state as follows:

(a) Only the home state shall have the power to take adverse action against a nurse's license issued by the home state.

(b) For purposes of taking adverse action, the home state licensing board shall give the same priority and effect to reported conduct received from a remote state as it would if such conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.

2. Issue cease and desist orders or impose an encumbrance on a nurse's authority to practice within that party state.

3. Complete any pending investigation of a nurse who changes the nurse's primary state of residence during the course of such an investigation. The licensing board shall also have the authority to take any appropriate action and shall promptly report the conclusions of such investigations to the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system shall promptly notify the new home state of any such actions.

4. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses as well as the production of evidence. Subpoenas issued by a licensing board in a party state for the attendance and testimony of witnesses or the production of evidence from another party state shall be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state in which any witness or evidence is located.

5. Obtain and submit, for each nurse licensure applicant, fingerprint or other biometric-based information to the federal bureau of investigation for criminal background checks, receive the results of the Federal Bureau of Investigation record search on criminal background checks and use the results in making licensure decisions.

6. If otherwise permitted by state law, recover from the affected nurse the costs of investigations and disposition of cases resulting from any adverse action taken against that nurse.

7. Take adverse action based on the factual findings of the remote state, provided that the licensing board follows its own procedures for taking such adverse action.

B. If adverse action is taken by the home state against a nurse's multistate license, the nurse's multistate licensure privilege to practice in all other party states shall be deactivated until all encumbrances have been removed from the multistate license. All home state disciplinary orders that impose adverse action against a nurse's multistate license shall include a statement that the nurse's multistate licensure privilege is deactivated in all party states during the pendency of the order.

C. This compact does not override a party state's decision that participation in an alternative program may be used in lieu of adverse action. The home state licensing board shall deactivate the multistate licensure privilege under the multistate license of any nurse for the duration of the nurse's participation in an alternative program.

Article VI

Coordinated Licensure Information System

and Exchange of Information

A. All party states shall participate in a coordinated licensure information system of all licensed registered nurses and licensed practical/vocational nurses. This system will include information on the licensure and disciplinary history of each nurse, as submitted by party states, to assist in the coordination of nurse licensure and enforcement efforts.

B. The commission, in consultation with the administrator of the coordinated licensure information system, shall formulate necessary and proper procedures for the identification, collection and exchange of information under this compact.

C. All licensing boards shall promptly report to the coordinated licensure information system any adverse action, any current significant investigative information, denials of applications with the reasons for such denials and nurse participation in alternative programs known to the licensing board regardless of whether such participation is deemed nonpublic or confidential under state law.

D. Current significant investigative information and participation in nonpublic or confidential alternative programs shall be transmitted through the coordinated licensure information system only to party state licensing boards.

E. Notwithstanding any other provision of law, all party state licensing boards contributing information to the coordinated licensure information system may designate information that may not be shared with nonparty states or disclosed to other entities or individuals without the express permission of the contributing state.

F. Any personally identifiable information obtained from the coordinated licensure information system by a party state licensing board may not be shared with nonparty states or disclosed to other entities or individuals except to the extent permitted by the laws of the party state contributing the information.

G. Any information contributed to the coordinated licensure information system that is subsequently required to be expunged by the laws of the party state contributing that information shall also be expunged from the coordinated licensure information system.

H. The compact administrator of each party state shall furnish a uniform data set to the compact administrator of each other party state that includes, at a minimum:

1. Identifying information.

2. Licensure data.

3. Information related to alternative program participation.

4. Other information that may facilitate the administration of this compact, as determined by commission rules.

I. The compact administrator of a party state shall provide all investigative documents and information requested by another party state.

Article VII

Establishment of the Interstate Commission of Nurse

Licensure Compact Administrators

A. The party states hereby create and establish a joint public entity known as the interstate commission of nurse licensure compact administrators as follows:

1. The commission is an instrumentality of the party states.

2. Venue is proper, and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

3. Nothing in this compact shall be construed to be a waiver of sovereign immunity.

B. Membership, voting and meetings are as follows:

1. Each party state shall have and be limited to one administrator. The head of the state licensing board or designee shall be the administrator of this compact for each party state. Any administrator may be removed or suspended from office as provided by the laws of the state from which the administrator is appointed. Any vacancy occurring in the commission shall be filled in accordance with the laws of the party state in which the vacancy exists.

2. Each administrator shall be entitled to one vote with regard to the adoption of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the commission. An administrator shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for an administrator's participation in meetings by telephone or other means of communication.

3. The commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws or rules of the commission.

4. All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in Article VIII of this compact.

5. The commission may convene in a closed, nonpublic meeting if the commission must discuss any of the following:

(a) Noncompliance of a party state with its obligations under this compact.

(b) The employment, compensation, discipline or other personnel matters, practices or procedures related to specific employees or other matters related to the commission's internal personnel practices and procedures.

(c) Current, threatened or reasonably anticipated litigation.

(d) Negotiation of contracts for the purchase or sale of goods, services or real estate.

(e) Accusing any person of a crime or formally censuring any person.

(f) Disclosure of trade secrets or commercial or financial information that is privileged or confidential.

(g) Disclosure of information of a personal nature if disclosure would constitute a clearly unwarranted invasion of personal privacy.

(h) Disclosure of investigatory records compiled for law enforcement purposes.

(i) Disclosure of information related to any reports prepared by or on behalf of the commission for the purpose of investigation of compliance with this compact.

(j) Matters specifically exempted from disclosure by federal or state statute.

6. If a meeting, or portion of a meeting, is closed pursuant to this article, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefor, including a description of the views expressed. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the commission or an order of a court of competent jurisdiction.

C. The commission, by a majority vote of the administrators, shall prescribe bylaws or rules to govern its conduct as may be necessary or appropriate to carry out the purposes and exercise the powers of this compact, including:

1. Establishing the fiscal year of the commission.

2. Providing reasonable standards and procedures:

(a) For the establishment and meetings of other committees.

(b) Governing any general or specific delegation of any authority or function of the commission.

3. Providing reasonable procedures for calling and conducting meetings of the commission, ensuring reasonable advance notice of all meetings and providing an opportunity for attendance of such meetings by interested parties, with enumerated exceptions designed to protect the public's interest, the privacy of individuals and proprietary information, including trade secrets. The commission may meet in closed session only after a majority of the administrators vote to close a meeting in whole or in part. As soon as practicable, the commission must make public a copy of the vote to close the meeting revealing the vote of each administrator, with no proxy votes allowed.

4. Establishing the titles, duties and authority and reasonable procedures for the election of the officers of the commission.

5. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the commission. Notwithstanding any civil service or other similar laws of any party state, the bylaws shall exclusively govern the personnel policies and programs of the commission.

6. Providing a mechanism for winding up the operations of the commission and the equitable disposition of any surplus monies that may exist after the termination of this compact after the payment or reserving of all of its debts and obligations.

D. The commission shall publish its bylaws and rules, and any amendments thereto, in a convenient form on the website of the commission.

E. The commission shall maintain its financial records in accordance with the bylaws.

F. The commission shall meet and take such actions as are consistent with the provisions of this compact and the bylaws.

G. The commission shall have the following powers:

1. To adopt uniform rules to facilitate and coordinate the implementation and administration of this compact. The rules shall have the force and effect of law and shall be binding in all party states.

2. To bring and prosecute legal proceedings or actions in the name of the commission, provided that the standing of any licensing board to sue or be sued under applicable law shall not be affected.

3. To purchase and maintain insurance and bonds.

4. To borrow, accept or contract for services of personnel, including employees of a party state or nonprofit organizations.

5. To cooperate with other organizations that administer state compacts related to the regulation of nursing, including sharing administrative or staff expenses, office space or other resources.

6. To hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of this compact and establish the commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel and other related personnel matters.

7. To accept any and all appropriate donations, grants and gifts of money, equipment, supplies, materials and services, and to receive, utilize and dispose of the same if at all times the commission avoids any appearance of impropriety or conflict of interest.

8. To lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve or use, any property, whether real, personal or mixed if at all times the commission avoids any appearance of impropriety.

9. To sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, whether real, personal or mixed.

10. To establish a budget and make expenditures.

11. To borrow money.

12. To appoint committees, including advisory committees composed of administrators, state nursing regulators, state legislators or their representatives, and consumer representatives, and other such interested persons.

13. To provide and receive information from, and to cooperate with, law enforcement agencies.

14. To adopt and use an official seal.

15. To perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of nurse licensure and practice.

H. Financing of the Commission is as follows:

1. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization and ongoing activities.

2. The commission may levy on and collect an annual assessment from each party state to cover the cost of its operations, activities and staff in its annual budget as approved each year. The aggregate annual assessment amount, if any, shall be allocated based on a formula to be determined by the commission, which shall adopt a rule that is binding on all party states.

3. The commission may not incur obligations of any kind before securing the monies adequate to meet the same or pledge the credit of any of the party states, except by, and with the authority of, such party state.

4. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of monies handled by the commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the commission.

I. Qualified immunity, defense and indemnification are as follows:

1. The administrators, officers, executive director, employees and representatives of the commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred, within the scope of commission employment, duties or responsibilities. this paragraph does not protect any such person from suit or liability for any damage, loss, injury or liability caused by the intentional, wilful or wanton misconduct of that person.

2. The commission shall defend any administrator, officer, executive director, employee or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities. This paragraph does not prohibit that person from retaining that person's own counsel if the actual or alleged act, error or omission did not result from that person's intentional, wilful or wanton misconduct.

3. The commission shall indemnify and hold harmless any administrator, officer, executive director, employee or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities if the actual or alleged act, error or omission did not result from the intentional, wilful or wanton misconduct of that person.

Article VIII

Rulemaking

A. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this article and the rules adopted thereunder. Rules and amendments shall become binding as of the date specified in each rule or amendment and shall have the same force and effect as other provisions of this compact.

B. Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.

C. Before the adoption of a final rule or rules by the commission, and at least sixty days in advance of the meeting at which the rule will be considered and voted on, the commission shall file a notice of proposed rulemaking both:

1. On the website of the commission.

2. On the website of each licensing board or the publication in which each state would otherwise publish proposed rules.

D. The notice of proposed rulemaking shall include all of the following:

1. The proposed time, date and location of the meeting in which the rule will be considered and voted on.

2. The text of the proposed rule or amendment and the reason for the proposed rule.

3. A request for comments on the proposed rule from any interested person.

4. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

E. Before the adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions and arguments, which shall be made available to the public.

F. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment.

G. The commission shall publish the place, time and date of the scheduled public hearing. The following apply to hearings under this subsection:

1. Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing. All hearings will be recorded, and a copy will be made available on request.

2. This subsection does not require a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

H. If no one appears at the public hearing, the commission may proceed with the adoption of the proposed rule.

I. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

J. The commission, by majority vote of all administrators, shall take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

K. On determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice or an opportunity for comment or hearing, provided that the usual rulemaking procedures provided in this compact and in this section shall be retroactively applied to the rule as soon as reasonably practicable, but not later than ninety days after the effective date of the rule. For the purposes of this subsection, an emergency rule is one that must be adopted immediately in order to do any of the following:

1. Meet an imminent threat to public health, safety or welfare.

2. Prevent a loss of commission or party state funds.

3. Meet a deadline for the adoption of an administrative rule that is required by federal law or rule.

L. The commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors. Public notice of any revisions shall be posted on the website of the commission. The revision shall be subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing, and delivered to the commission before the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

Article IX

Oversight, Dispute Resolution and Enforcement

A. Oversight is as follows:

1. Each party state shall enforce this compact and take all actions necessary and appropriate to effectuate this compact's purposes and intent.

2. The commission is entitled to receive service of process in any proceeding that may affect the powers, responsibilities or actions of the commission and has standing to intervene in such a proceeding for all purposes. Failure to provide service of process in such proceeding to the commission shall render a judgment or order void as to the commission, this compact or adopted rules.

B. Default, technical assistance and termination are as follows:

1. If the commission determines that a party state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall do both of the following:

(a) Provide written notice to the defaulting state and other party states of the nature of the default, the proposed means of curing the default or any other action to be taken by the commission.

(b) Provide remedial training and specific technical assistance regarding the default.

2. If a state in default fails to cure the default, the defaulting state's membership in this compact may be terminated on an affirmative vote of a majority of the administrators, and all rights, privileges and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

3. Termination of membership in this compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the commission to the governor of the defaulting state and to the executive officer of the defaulting state's licensing board and each of the party states.

4. A state whose membership in this compact has been terminated is responsible for all assessments, obligations and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

5. The commission may not bear any costs related to a state that is found to be in default or whose membership in this compact has been terminated unless agreed on in writing between the commission and the defaulting state.

6. The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district in which the commission has its principal offices. The prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees.

C. Dispute resolution is as follows:

1. On request by a party state, the commission shall attempt to resolve disputes related to the compact that arise among party states and between party and nonparty states.

2. The commission shall adopt a rule providing for both mediation and binding dispute resolution for disputes, as appropriate.

3. If the commission cannot resolve disputes among party states arising under this compact:

(a) The party states may submit the issues in dispute to an arbitration panel that is composed of individuals appointed by the compact administrator in each of the affected party states and an individual who is mutually agreed on by the compact administrators of all the party states involved in the dispute.

(b) The decision of a majority of the arbitrators is final and binding.

D. Enforcement provisions are as follows:

1. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

2. By majority vote, the commission may initiate legal action in the United States District Court for the District of Columbia or the federal district in which the commission has its principal offices against a party state that is in default to enforce compliance with this compact and its adopted rules and bylaws. The relief sought may include both injunctive relief and damages. if judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorneys' fees.

3. The remedies in this compact are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

Article X

Effective Date, Withdrawal and Amendment

A. This compact shall become effective and binding on the earlier of the date of legislative enactment of this compact into law by at least twenty-six states or December 31, 2018. All party states to this compact that also were parties to the prior nurse licensure compact, superseded by this compact, shall be deemed to have withdrawn from the prior compact within six months after the effective date of this compact.

B. Each party state to this compact shall continue to recognize a nurse's multistate licensure privilege to practice in that party state issued under the prior compact until that party state has withdrawn from the prior compact.

C. Any party state may withdraw from this compact by enacting a statute repealing the compact. A party state's withdrawal shall not take effect until six months after enactment of the repealing statute.

D. A party state's withdrawal or termination shall not affect the continuing requirement of the withdrawing or terminated state's licensing board to report adverse actions and significant investigations occurring before the effective date of such a withdrawal or termination.

E. This compact does not invalidate or prevent any nurse licensure agreement or other cooperative arrangement between a party state and a nonparty state that is made in accordance with the other provisions of this compact.

F. This compact may be amended by the party states. An amendment to this compact does not become effective and binding on the party states until it is enacted into the laws of all party states.

G. Representatives of nonparty states to this compact shall be invited to participate in the activities of the commission, on a nonvoting basis, before the adoption of this compact by all states.

Article XI

Construction and Severability

This compact shall be liberally construed so as to effectuate the purposes of the compact. the provisions of this compact shall be severable, and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the Constitution of any party state or of the United States, or if the applicability of the compact to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability of the compact to any government, agency, person or circumstance shall not be affected thereby. If this compact is held to be contrary to the constitution of any party state, this compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the party state affected as to all severable matters.

§ 32-1660.01 Applicability of compact; scope of practice; notification; withdrawal from compact

A. The compact adopted by section 32-1660 does not alter the scope of practice of a registered nurse practicing in this state. A registered nurse practicing in this state shall comply with the scope of practice enacted under this chapter.

B. The commission created by the compact adopted by section 32-1660 does not have the authority to alter the scope of practice for registered nurses practicing in this state. The governor may withdraw this state from the compact adopted by section 32-1660 if the board notifies the governor that the commission has adopted a rule to change the scope of practice for registered nurses in this state and a law is enacted that repeals the compact.

§ 32-1660.02 Open meeting requirements

If a meeting, or a portion of a meeting, of the interstate commission of nurse licensure compact administrators is closed pursuant to section 32-1660, article VII, subsection B, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision consistent with title 38, chapter 3, article 3.1.

§ 32-1660.03 Arizona state board of nursing; notice of commission actions

The Arizona state board of nursing, within thirty days after an interstate commission of nurse licensure compact administrators action, shall post on the board's public website notice of any commission action that may affect a nurse's license.

Article 3 Regulation

§ 32-1663 Disciplinary action

A. If an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.

B. In its denial order, the board shall immediately invalidate any temporary license or certificate issued to the applicant.

C. Any person aggrieved by an order of the board issued under the authority granted by subsection A of this section may request an administrative hearing pursuant to title 41, chapter 6, article 10.

D. If the board finds, after affording an opportunity to request an administrative hearing pursuant to title 41, chapter 6, article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.

E. If the board finds after giving the person an opportunity to request an administrative hearing pursuant to title 41, chapter 6, article 10 that a nurse who practices in this state and is licensed by another jurisdiction pursuant to section 32-1668 committed an act of unprofessional conduct, the board may limit, suspend or revoke the privilege of that nurse to practice in this state.

F. If the board determines pursuant to an investigation that reasonable grounds exist to discipline a person pursuant to subsection D or E of this section, the board may serve on the licensee or certificate holder a written notice that states:

1. That the board has sufficient evidence that, if not rebutted or explained, will justify the board in taking disciplinary actions allowed by this chapter.

2. The nature of the allegations asserted and that cites the specific statutes or rules violated.

3. That unless the licensee or certificate holder submits a written request for a hearing within thirty days after service of the notice by certified mail, the board may consider the allegations admitted and may take any disciplinary action allowed pursuant to this chapter without conducting a hearing.

G. If the Arizona state board of nursing acts to modify any registered nurse practitioner's or clinical nurse specialist's prescription writing privileges, it shall immediately notify the Arizona state board of pharmacy of the modification.

§ 32-1663.01 Administrative violations; administrative penalty

A. The board may sanction any of the following as an administrative violation rather than as unprofessional conduct and may impose an administrative penalty of not more than one thousand dollars for any of the following:

1. Failing to timely renew a nursing license or licensed nursing assistant license while continuing to practice nursing or engage in activities or duties regulated by this chapter.

2. Failing to notify the board in writing within thirty days after a change in address.

3. Failing to renew nursing, licensed nursing assistant or certified nursing assistant program approval and continuing to operate the program.

4. If the board adopts a substantive policy statement pursuant to section 41-1091, practicing nursing without a license.

B. A regulated party who fails to pay an administrative penalty as prescribed by this section or to establish a schedule for payment as prescribed pursuant to section 32-1606, subsection A, paragraph 6 within thirty days after notification commits an act of unprofessional conduct and is subject to disciplinary action.

C. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies collected under this section in the state general fund.

§ 32-1664 Investigation; hearing; notice

A. In connection with an investigation, the board or its duly authorized agents or employees may obtain any documents, reports, records, papers, books and materials, including hospital records, medical staff records and medical staff review committee records, or any other physical evidence that indicates that a person or regulated party may have violated this chapter or a rule adopted pursuant to this chapter:

1. By entering the premises, at any reasonable time, and inspecting and copying materials in the possession of a regulated party that relate to nursing competence, unprofessional conduct or the mental or physical ability of a licensee to safely practice nursing.

2. By issuing a subpoena under the board's seal to require the attendance and testimony of witnesses or to demand the production for examination or copying of documents or any other physical evidence. Within five days after a person is served with a subpoena, that person may petition the board to revoke, limit or modify the subpoena. The board shall do so if in its opinion the evidence required does not relate to unlawful practices covered by this chapter, is not relevant to the charge that is the subject matter of the hearing or investigation or does not describe with sufficient particularity the physical evidence whose production is required.

3. By submitting a written request for the information.

4. In the case of an applicant's or a regulated party's personal medical records, as defined in section 12-2291, by any means allowed by this section if the board either:

(a) Obtains from the applicant or regulated party, or the health care decision maker of the applicant or regulated party, a written authorization that satisfies the requirements of title 12, chapter 13, article 7.1.

(b) Reasonably believes that the records relate to information already in the board's possession regarding the competence, unprofessional conduct or mental or physical ability of the applicant or regulated party as it pertains to safe practice. If the board adopts a substantive policy statement pursuant to section 41-1091, it may authorize the executive director, or a designee in the absence of the executive director, to make the determination of reasonable belief.

B. A regulated party and a health care institution as defined in section 36-401 shall, and any other person may, report to the board any information the licensee, certificate holder, health care institution or individual may have that appears to show that a regulated party or applicant is, was or may be a threat to the public health or safety.

C. If a death or an incident requiring emergency medical response occurs in a dental office or dental clinic during the administration of or recovery from general anesthesia or sedation by a certified registered nurse anesthetist, the certified registered nurse anesthetist shall, and any other person may, report the death or incident to the board within seven business days after the occurrence.

D. The board retains jurisdiction to proceed with an investigation or a disciplinary proceeding against a regulated party whose license or certificate expired not more than five years before the board initiates the investigation.

E. Any regulated party, health care institution or other person that reports or provides information to the board in good faith is not subject to civil liability. If requested the board shall not disclose the name of the reporter unless the information is essential to proceedings conducted pursuant to this section.

F. Any regulated party or person who is subject to an investigation may obtain representation by counsel.

G. On determination of reasonable cause, the board, or if delegated by the board the executive director, may require a licensee, certificate holder or applicant to undergo at the expense of the licensee, certificate holder or applicant any combination of mental, physical or psychological examinations, assessments or skills evaluations necessary to determine the person's competence or ability to practice safely. These examinations may include bodily fluid testing and other examinations known to detect the presence of alcohol or drugs. If the executive director orders the licensee, applicant or certificate holder to undertake an examination, assessment or evaluation pursuant to this subsection, and the licensee, certificate holder or applicant fails to affirm to the board in writing within fifteen days after receipt of the notice of the order that the licensee, certificate holder or applicant intends to comply with the order, the executive director shall refer the matter to the board to allow the board to determine whether to issue an order pursuant to this subsection. At each regular meeting of the board the executive director shall report to the board data concerning orders issued by the executive director pursuant to this subsection since the last regular meeting of the board and any other data requested by the board.

H. The board shall provide the investigative report if requested pursuant to section 32-3206.

I. If after completing its investigation the board finds that the information provided pursuant to this section is not of sufficient seriousness to merit disciplinary action against the regulated party or applicant, it may take either of the following actions:

1. Dismiss if in the opinion of the board the information is without merit.

2. File a letter of concern if in the opinion of the board there is insufficient evidence to support disciplinary action against the regulated party or applicant but sufficient evidence for the board to notify the regulated party or applicant of its concern.

J. Except as provided pursuant to section 32-1663, subsection F and subsection K of this section, if the investigation in the opinion of the board reveals reasonable grounds to support the charge, the regulated party is entitled to an administrative hearing pursuant to title 41, chapter 6, article 10. If notice of the hearing is served by certified mail, service is complete on the date the notice is placed in the mail.

K. A regulated party shall respond in writing to the board within thirty days after notice of the hearing is served as prescribed in subsection J of this section. The board may consider a regulated party's failure to respond within this time as an admission by default to the allegations stated in the complaint. The board may then take disciplinary actions allowed by this chapter without conducting a hearing.

L. An administrative law judge or a panel of board members may conduct hearings pursuant to this section.

M. In any matters pending before it, the board may issue subpoenas under its seal to compel the attendance of witnesses.

N. Patient records, including clinical records, medical reports, laboratory statements and reports, any file, film, other report or oral statement relating to diagnostic findings or treatment of patients, any information from which a patient or a patient's family might be identified or information received and records kept by the board as a result of the investigation procedure outlined in this chapter are not available to the public and are not subject to discovery in civil or criminal proceedings.

O. Hospital records, medical staff records, medical staff review committee records, testimony concerning these records and proceedings related to the creation of these records shall not be available to the public. They shall be kept confidential by the board and shall be subject to the same provisions concerning discovery and use in legal actions as are the original records in the possession and control of hospitals, their medical staffs and their medical staff review committees. The board shall use these records and testimony during the course of investigations and proceedings pursuant to this chapter.

P. If the regulated party is found to have committed an act of unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter, the board may take disciplinary action.

Q. The board may subsequently issue a denied license or certificate and may reissue a revoked or voluntarily surrendered license or certificate.

R. On application by the board to any superior court judge, a person who without just cause fails to comply with a subpoena issued pursuant to this section may be ordered by the judge to comply with the subpoena and punished by the court for failing to comply. Subpoenas shall be served by regular or certified mail or in the manner required by the Arizona rules of civil procedure.

S. The board may share investigative information that is confidential under subsections N and O of this section with other state, federal and international health care agencies and with state, federal and international law enforcement authorities if the recipient is subject to confidentiality requirements similar to those established by this section. A disclosure made by the board pursuant to this subsection is not a waiver of the confidentiality requirements established by this section.

§ 32-1665 Rehearing; judicial review

A. Any person aggrieved by an order of the board denying a license, approval or certificate and any regulated party who is aggrieved by a disciplinary order of the board may file a motion for rehearing or review pursuant to title 41, chapter 6, article 10.

B. Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-1666 Unlawful acts

A. It is unlawful for a person who is not licensed or certified under this chapter to:

1. Practice or offer to practice as a registered or practical nurse, registered nurse practitioner, certified nurse midwife or clinical nurse specialist in this state.

2. Represent or use any title, abbreviation, letters, figures, sign, card or device to indicate that the person or any other person is a registered nurse, graduate nurse, professional nurse, nurse practitioner, certified nurse midwife, nurse midwife, clinical nurse specialist, practical nurse, licensed nursing assistant or certified nursing assistant.

3. Represent or use any title, abbreviation, letters, sign, card or device to indicate that the person or any other person is certified pursuant to this chapter.

B. It is unlawful for a person to operate a training or educational program to prepare students for licensure or certification under this chapter unless it has been approved under this chapter.

§ 32-1666.01 Cease and desist orders; injunctive relief

A. In addition to all other remedies, when it appears to the board, either upon complaint or otherwise, that any person or nursing program has violated this chapter or any rule or order of the board, the board may do either of the following:

1. Serve by certified mail or personal service a cease and desist order.

2. Through the attorney general or the county attorney of the county in which the violation is alleged to have occurred, apply to the superior court in that county for an injunction.

B. The court shall issue a temporary restraining order, a preliminary injunction or a permanent injunction without bond.

C. Service of process may be in any county of this state where the violator is found or is operating.

§ 32-1667 Violations; classification

A person is guilty of a class 6 felony who:

1. Sells or fraudulently obtains or furnishes any nursing diploma, certificate, license, permit or record.

2. Engages in any conduct prohibited in section 32-1666.

3. Operates a training or educational program regulated pursuant to this chapter unless the program is a currently approved program.

4. Practices nursing or advanced practice nursing under cover of any diploma, license, permit or record illegally or fraudulently obtained, signed or issued unlawfully or because of fraudulent representation.

Chapter 15.1 Dispensing Opticians

Article 1 Administration

§ 32-1671 Definitions

In this chapter, unless the context otherwise requires:

1. "Board" means the state board of dispensing opticians.

2. "Direct supervision" means the provision of direction and control through inspection and evaluation of work by consultation or instruction as needed, provided that at least one licensed dispensing optician works at each optical establishment on a full-time basis.

3. "Dispensing optician" means any person, except as provided in section 32-1691, who dispenses lenses, contact lenses, frames, artificial eyes, optical devices, appurtenances thereto or parts thereof to the intended wearer on written prescription from a duly licensed physician or optometrist, and in accordance with such prescription interprets, measures, adapts, fits or adjusts the same for the aid or correction of visual or ocular anomalies of the human eye or who duplicates, replaces, reproduces or repeats the same without prescription when there is no change in refractive value, provided that contact lenses shall never be dispensed without a written contact lense prescription being on file in any optical establishment, office of an optometrist or office of a physician or verbal confirmation of that written prescription. The dispensing optician shall advise the intended wearer at the time that contact lenses are delivered to return to the prescribing physician or optometrist for evaluation and follow-up care.

4. "Optical establishment" means a physical location in which lenses, contact lenses, frames, artificial eyes, optical devices, appurtenances thereto or parts thereof are dispensed to the intended wearer on written prescription from a physician licensed pursuant to chapter 13 or 17 of this title or an optometrist licensed pursuant to chapter 16 of this title.

5. "Person" means a natural person.

§ 32-1672 Board of dispensing opticians; members; qualifications; terms; removal; immunity

A. The state board of dispensing opticians is established consisting of seven members appointed by the governor. Five members of the board shall be licensees in good standing under this chapter. Two members of the board shall be public members.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. Each member shall serve for a term of five years expiring on the first day in January of the appropriate year. A member shall not serve for more than two complete consecutive terms.

D. The board shall elect from among its membership a chairman and such other officers as it deems necessary, who shall hold their offices at the pleasure of the board.

E. Members of the board are eligible to receive compensation in the amount of fifty dollars for each day of actual service in the business of the board.

F. The governor may remove a board member from office if the governor determines that the member is guilty of malfeasance, misfeasance or dishonorable conduct.

G. The board, the secretary-treasurer of the board and permanent and temporary board personnel are immune from civil liability for any act the board, its officers and board personnel perform in good faith and in furtherance of this chapter.

§ 32-1673 Powers and duties of the board

A. The board shall adopt rules to administer and enforce this chapter. Rules adopted pursuant to this section shall include rules to specify the lawful scope of the practice of dispensing opticians and necessary evidence that may support a charge of substandard care rendered by a dispensing optician or an optical establishment.

B. The board may:

1. Hire investigators subject to title 41, chapter 4, article 4 or contract with investigators to assist in the investigation of violations of this chapter.

2. Hire employees subject to title 41, chapter 4, article 4 and contract with other state agencies as necessary to carry out this chapter.

3. In connection with board hearings and investigations, issue subpoenas for the attendance of witnesses and the production of books, records, documents and other necessary evidence.

§ 32-1674 Records

The board shall keep readily available for inspection a record of all applications for licenses, including a record as to whether a license or renewal license has been issued, and, if revoked or suspended, the date of filing the order of revocation or suspension. It shall maintain a list of all persons who have had a license revoked or suspended, and may keep a written record of all complaints filed against licensees. Each license issued shall be indicated by the serial number thereof and by the name and address of the licensee. The records shall be public records open to inspection.

Article 2 Licensing

§ 32-1681 Licensure; issuance

A. A person shall not practice as a dispensing optician in this state without a valid license issued pursuant to this chapter.

B. The board shall issue a license to any person who complies with the provisions of this chapter and board rules. All licenses expire at the end of each calendar year but do not expire while an application for renewal is pending before the board.

§ 32-1682 Applications for a dispensing optician license; original and renewal; examination

A. An applicant for licensure shall submit a verified application to the board on a form prescribed by the board. The application shall contain information the board determines is necessary to assist the board in determining the applicant's ability to meet the requirements of this chapter and board rules.

B. A person who wishes to renew a license shall submit a verified renewal application to the board each year on a form prescribed by the board. The renewal application shall contain information the board determines is necessary to assist the board in determining that the applicant is not in default of or in violation of this chapter or board rules and that the licensee continues to meet the requirements of this chapter.

C. The board may require from all applicants any additional information that in its judgment is necessary to assist the board in determining whether the applicant is entitled to initial or continued licensure.

D. To assist it in determining whether an applicant has acquired the minimum basic skills required for optical dispensing, the board shall require a written and practical examination of all applicants for an initial license. This requirement does not apply to applicants who qualify pursuant to section 32-1683, paragraph 4, subdivision (a). The board may prescribe other reasonable rules relating to the examination of applicants as it determines necessary for the performance of its duties. The board may accept the results of a written or practical examination prepared by a nationally recognized body as determined by the board in lieu of those portions of an examination prepared by the board if they are at least substantially equivalent to those prepared by the board. The board may keep all procedures relating to the administration of the examination and the answer keys confidential.

§ 32-1683 Qualifications of applicants

An applicant for a license issued under this chapter shall:

1. Not have been convicted of a crime involving moral turpitude.

2. Not be a former licensee under this chapter whose license was suspended or revoked and not subsequently reinstated.

3. Be a high school graduate or the equivalent as prescribed by rules of the board.

4. Establish that the applicant has the required technical skill and training necessary for licensing by any one of the following means:

(a) Submit evidence of having a valid and subsisting license in good standing from another state that licenses dispensing opticians or ophthalmic dispensers and whose requirements are substantially equivalent to the requirements of this chapter.

(b) Submit evidence of having served an apprenticeship in optical dispensing for three of the six years immediately preceding the date of application under the direct supervision of a dispensing optician, optometrist or an allopathic or osteopathic physician who holds an active license in good standing issued by any state. The apprenticeship must include all principal phases of optical dispensing in order to result in the applicant acquiring the minimum basic skills required for optical dispensing. The board may accept a maximum of one thousand hours of alternative optical laboratory experience toward satisfying the apprenticeship requirements if that experience meets the standards established by the board.

(c) Submit evidence of graduation from a school of optical dispensing that presently meets the standards required for approval by a nationally recognized body on opticianry accreditation as determined by the board. The applicant must also have served an apprenticeship in optical dispensing as prescribed in subdivision (b) of this paragraph for one of the six years immediately preceding the date of application.

(d) Submit evidence of having worked as a dispensing optician or having served as an apprentice to a dispensing optician, a physician or an optometrist in a nonlicensing state for three of the six years immediately preceding the date of application. This work or apprenticeship must include all principal phases of optical dispensing in order to result in the applicant acquiring the minimum basic skills required for optical dispensing.

§ 32-1684 License issuance, renewal and reinstatement

A. Within a reasonable time after the receipt of an original application or renewal application, together with the fee required by section 32-1685, the board shall investigate the qualifications of the applicant. The board shall approve the application if the applicant meets the qualifications of this chapter and board rules and shall allow the applicant for initial licensure to sit for the practical examination. The board shall issue a license if the applicant successfully completes this examination. If the board disapproves an original or renewal application it shall notify the applicant pursuant to section 32-1694, subsection A.

B. Except as provided in section 32-4301, on or before December 31 of each year a licensee shall submit a renewal application on a form prescribed by the board. The licensee shall submit the renewal fee prescribed by section 32-1685 with the application.

C. A licensee who submits a renewal application and renewal fee after December 31 but before the following January 31 shall pay a late fee prescribed by section 32-1685 in addition to the renewal fee. The board may allow a licensee additional time to submit a renewal application if the licensee demonstrates to the board's satisfaction good cause to do so.

D. Except as provided in section 32-4301, a license expires if it is not renewed before January 31 following the December 31 expiration date. A person who does not submit a renewal application, a renewal fee and a late fee before that date may submit an application for reinstatement on a form prescribed by the board within one year after the license expiration date. The applicant for reinstatement shall submit the renewal fee and a late fee prescribed by section 32-1685 with the application. The applicant shall take the state board practical examination. The applicant shall also take the national examinations if the applicant did not successfully complete those examinations before the applicant obtained the original license.

E. A person who does not submit a reinstatement application and applicable fees within one year after the license expiration date shall apply for licensure as an original applicant.

§ 32-1684.01 Optical establishment license; qualifications

A. Any person, corporation, company, partnership, firm, association or society that wishes to operate an optical establishment shall submit a verified application to the board on a form prescribed by the board. The application shall include the application fee and the following information:

1. The location of the proposed optical establishment.

2. The proposed business hours of the optical establishment.

3. The names and license numbers of the licensed dispensing opticians who work at the optical establishment.

B. An applicant for a license under this section shall provide evidence to the board's satisfaction that at least one licensed dispensing optician works at the optical establishment on a full-time basis.

C. Within thirty days after the receipt of an original application or renewal application and the application fee, the board shall investigate the qualifications of the applicant. If the applicant meets the qualifications of this chapter and board rules, the board shall approve the application and issue a license. If the application is disapproved, the board shall notify the applicant as provided in section 32-1694, subsection A.

D. To renew a license a licensee shall submit a renewal application to the board on or before June 30 of each year on a form prescribed by the board. The application shall include the applicable renewal fee and information the board deems necessary for it to determine that the licensee continues to meet the requirements of this chapter and board rules.

E. A licensee that submits a renewal application and applicable fee after June 30 but before July 31 shall pay a late fee pursuant to section 32-1685 in addition to the renewal fee.

F. A license expires if a licensee does not submit a renewal application and renewal fee on or before July 31 pursuant to subsection E of this section. After that date the applicant shall apply for licensure as an original applicant.

§ 32-1685 Fees

A. The board shall establish nonrefundable fees that do not exceed the following:

1. Filing an application for a dispensing optician license, two hundred dollars.

2. Issuing an original dispensing optician license, two hundred dollars.

3. Renewing a dispensing optician license, two hundred dollars.

4. Late renewal of a dispensing optician license, two hundred dollars.

5. Name change and issuance of a duplicate dispensing optician license, one hundred dollars.

6. Reinstatement of a dispensing optician license, two hundred dollars.

7. Filing an application for an optical establishment license, two hundred dollars.

8. Issuing an original optical establishment license, two hundred dollars.

9. Renewing an optical establishment license, two hundred dollars.

10. Late renewal of an optical establishment license, two hundred dollars.

11. Name or location change and issuance of a duplicate optical establishment license, one hundred dollars.

B. The board may charge additional fees for services that the board deems are necessary to carry out this chapter and board rules. These fees shall not exceed the costs of rendering the services.

§ 32-1686 Board of dispensing opticians fund

(L24, Ch. 222, sec. 21. Eff. until 7/1/28)

A. Before the end of each month, pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies received by the board in the state general fund and deposit the remaining eighty-five percent in the board of dispensing opticians fund.

B. Monies deposited in the board of dispensing opticians fund are subject to section 35-143.01.

§ 32-1686 (Version 2) Board of dispensing opticians fund

(L24, Ch. 222, sec. 22. Eff. 7/1/28)

A. Before the end of each month, pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies received by the board in the state general fund and deposit the remaining ninety percent in the board of dispensing opticians fund.

B. Monies deposited in the board of dispensing opticians fund are subject to section 35-143.01.

§ 32-1687 Continuing education

A. All dispensing opticians licensed under this chapter shall satisfy a continuing education requirement in accordance with board rules.

B. The board shall prescribe by rule the form and content of continuing education for dispensing opticians licensed under this chapter that is designed to educate the licensee in current developments, skills and procedures. Opticians may satisfy this continuing education requirement by home study courses or attending seminars and are not required to join a professional association of dispensing opticians in this state in order to fulfill the requirement. The rules shall establish the number of hours of continuing education required within a three-year period in an amount not to exceed twenty-one hours.

Article 3 Regulation

§ 32-1691 Exemptions of persons and sales

This chapter does not apply to:

1. Any physician or optometrist who is licensed to practice under the laws of this state.

2. Any person working under the direct supervision of a physician, optometrist or dispensing optician who is licensed to practice in this state, as long as the person is working exclusively for the licensed physician, optometrist or dispensing optician and does not claim to be a dispensing optician.

3. The sale of goggles, sunglasses, colored glasses or occupational protective eye devices, if they do not have refractive values.

4. The sale of complete ready-to-wear eyeglasses for near vision only, toys, binoculars or scientific instruments as merchandise.

5. The sale and fitting of ocular prosthetic appliances if they do not have refractive values.

6. The sale of replacement soft contact lenses as provided in chapter 16, article 5 and chapter 18 of this title.

§ 32-1691.01 Investigation and adjudication of complaints

A. The board on its motion may investigate any evidence that appears to show the existence of any of the grounds for disciplinary action pursuant to section 32-1696.

B. The board shall investigate the complaint of any person that appears to show the existence of any of the grounds for disciplinary action pursuant to section 32-1696. The board shall not disclose the name of the person who submitted the verified complaint unless that person's testimony is essential to the disciplinary proceedings conducted pursuant to this section.

C. After a motion approved by the board or on receipt of a verified complaint, as provided in subsections A and B of this section, the chairman of the board or the chairman’s designee shall either initiate an investigation or refer the complaint or motion to investigate to an investigative committee appointed by the board. The committee shall consist of both licensed dispensing opticians and lay persons who need not be members of the board.

D. If an investigation is initiated the chairman or the chairman’s designee shall appoint a member of the board to act as the investigative officer. Within ninety days after appointment, the officer shall conclude the investigation and make a written recommendation to the board on whether disciplinary action is appropriate and, if it is appropriate, the type of disciplinary action the board should take.

E. If the matter is referred to an investigative committee, the committee shall investigate the charges and within ninety days after referral shall make a written recommendation to the board on whether disciplinary action is appropriate and, if it is appropriate, the type of disciplinary action it should take.

F. The board shall make copies of the investigative officer’s or investigative committee’s report available to the complainant and to the licensed party.

G. Within sixty days after receipt of the written report of the investigative officer or the investigative committee, the board shall issue preliminary findings based on the written report. If the board finds that the evidence would, if proved true, warrant suspension or revocation of a license issued under this chapter, formal proceedings for the revocation or suspension of the license shall be immediately initiated as provided in title 41, chapter 6, article 10. If the board finds that the evidence does not warrant suspension or revocation of a license, the board shall either dismiss the complaint or impose other lesser disciplinary action pursuant to section 32-1693.

H. The board shall provide a copy of the preliminary order to the complainant and to the licensed party. Within fifteen days after receiving the copy either party may file a motion for a rehearing or review pursuant to title 41, chapter 6, article 10.

I. Any person who in good faith makes a report as provided in this section to the board or to any person or committee acting on behalf of the board is not subject to liability for civil damages as a result of the report.

J. The board may proceed against all licenses held by a person or optical establishment in common, even if held for different physical locations, if in the opinion of the board the seriousness of the complaint or other evidence received by the board so warrants.

§ 32-1693 Denial, suspension and revocation of license; other disciplinary sanctions

A. The board may deny the application of any applicant who fails to meet the qualifications prescribed by this chapter or board rules.

B. The board may take any combination of the following disciplinary actions against a licensee pursuant to section 32-1691.01:

1. Suspend or revoke the license. Suspension of a license shall be for a specified period not to exceed one year.

2. Enter a decree of censure. In entering a decree of censure the board may require that restitution be made to the aggrieved party.

3. Place a licensee on probation. In the issuance of an order fixing a period and terms of probation, the board shall be guided by such considerations as are necessary to protect the public health, safety and welfare and to rehabilitate the licensee.

4. Enter an order of restitution.

5. Impose a civil penalty of not more than one thousand dollars for each violation of this chapter or board rules.

C. Reapplication for a license after revocation shall be made in the same manner as the application for an original license and not sooner than two years after the date the board revoked the license.

D. Failure to comply with any final board order, including an order prescribed by this section, is cause for suspension or revocation of a license.

§ 32-1694 Notice of action; practice pending appeal

A. When the board denies, suspends or revokes a license, it shall send notice of its action by registered mail to the applicant or licensee concerned, setting forth the reasons for the action taken.

B. Within thirty days after the date of the notice, the applicant or licensee may request a hearing before the board pursuant to title 41, chapter 6, article 10.

C. No applicant for original license may practice as a dispensing optician during the pendency of an appeal from a decision of the board. No licensee whose license is revoked or suspended or whose renewal application is refused by the board shall be denied the right to practice during the pendency of any appeal from a decision of the board.

§ 32-1695 Judicial review

Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-1696 Unlawful acts; grounds for disciplinary action; classification

A. It is unlawful to:

1. Obtain or attempt to obtain a license by fraud or misrepresentation or by knowingly taking advantage of a mistake of another person or agency.

2. Hire, procure or induce a person to act as a licensed dispensing optician if the person is not licensed to practice as a dispensing optician.

3. Give, pay or receive, or offer to give, pay or receive, directly or indirectly, any gift, premium, discount, rebate or remuneration to or from any physician or optometrist in return for the referral of patients or customers.

4. Engage in false or misleading representations by knowingly and with the intent to sell to the public real or personal property or services, or to induce the public to acquire an interest in real or personal property or services, make and publish an advertisement, either printed or by public proclamation, or otherwise, containing any false, fraudulent, deceptive or misleading representations in respect to such property or services or the manner of sale or distribution.

5. Provide any examination or treatment of the eye or advertise eye examinations without the disclaimer "by independent doctor of optometry", "by independent doctor of ophthalmology" or "by independent physician licensed pursuant to title 32, chapter 13 or 17, Arizona Revised Statutes".

6. Use any means to measure the refractive value of the human eye, except nonrefractive, nondiagnostic devices, such as a keratometer, ophthalmometer or other instrumentation that is required to fit a contact lens to an intended wearer.

7. Make use of any advertising statement of a character tending to indicate to the public superiority of any particular system or type of eyesight examination or treatment over that provided by other licensed ocular practitioners.

8. Fraudulently, dishonestly, illegally or unprofessionally conduct the practice of optical dispensing or engage in any conduct that would tend to do harm to the visual health of the public.

B. A person who violates this chapter or a board rule is subject to disciplinary action as prescribed in this article.

C. A person or licensee who violates subsection A, paragraph 1, 4, 5 or 8 is guilty of a class 1 misdemeanor. A person or licensee who violates subsection A, paragraph 2, 3, 6 or 7 is guilty of a class 2 misdemeanor.

§ 32-1697 Violations; classification

The practice of optical dispensing or operation of an optical establishment without a valid and subsisting license is a class 2 misdemeanor.

§ 32-1698 Prosecution of violations

The prosecuting officer of a county or city shall prosecute all violations of this chapter occurring within his jurisdiction by persons who do not have a valid and subsisting license issued under the provisions of this chapter.

§ 32-1699 Injunctions; civil penalties

A. If the board believes that a person has violated this chapter or board rules, the board may make application to the appropriate court for an order enjoining such acts or practices. Injunctive relief pursuant to this section is in addition to any other remedy prescribed by law.

B. The board may impose a civil penalty of not more than one thousand dollars against any person or entity acting without a license issued by the board in violation of this chapter.

Chapter 16 Optometry

Article 1 General Provisions

§ 32-1701 Definitions

In this chapter, unless the context otherwise requires:

1. "Board" means the state board of optometry.

2. "Conviction" means a judgment of conviction by any state or federal court of competent jurisdiction in a criminal cause, regardless of whether an appeal is pending or could be taken, and includes any judgment or order based on a plea of no contest.

3. "Licensee" means a person licensed to practice the profession of optometry pursuant to this chapter.

4. "Optometrist" or "doctor of optometry" means a person who has graduated from an accredited college of optometry.

5. "Pharmaceutical" or "pharmaceutical agent" means a prescription or nonprescription substance or a schedule III controlled substance used for examination, diagnosis or treatment of conditions of the human eye and its adnexa.

6. "Practice of the profession of optometry" means:

(a) The examination or refraction of the human eye and its appendages and the employment of any objective or subjective means or methods other than surgery for the purpose of diagnosing or treating any visual, muscular, neurological or anatomical anomalies of the eye.

(b) The use of pharmaceutical agents authorized pursuant to this chapter.

(c) The use of any instrument or device to train the visual system or correct any abnormal condition of the eye or eyes.

(d) The prescribing, fitting or employment of any lens, prism, frame or mountings for the correction or relief of or aid to the visual function, provided that superficial foreign bodies may be removed from the eye and its appendages.

(e) The taking of smears of the human eye and its adnexa for culture analysis and the ordering or performing of clinical tests that are appropriate to diagnose, treat or manage conditions of the human eye and its adnexa and that are limited to those CLIA-waived clinical tests approved pursuant to 42 Code of Federal Regulations section 493.15.

7. "Surgery" means, in reference to the human eye and its appendages, an invasive procedure in which in vivo human tissue is cut, burned, vaporized, removed, coagulated or photodisrupted by use of an electrical cautery, a scalpel, a cryoprobe, a laser or ionizing radiation. Surgery does not include nonsurgical procedures, including the removal of superficial foreign bodies or eyelashes or the use of lasers for diagnostic purposes.

8. "Unprofessional conduct" means:

(a) Wilful betrayal of a professional secret or wilful violation of a privileged communication except as otherwise required by law.

(b) Charging a fee for services not rendered or dividing a professional fee for patient referrals among health care providers or health care institutions or between these providers and institutions or a contractual arrangement that has the same effect. This subdivision does not prohibit a bona fide lease based on the revenues earned by a licensee.

(c) Addiction to, or illegal use of, narcotic drugs or use of intoxicating beverages to excess or practicing or attempting to practice the profession of optometry while under the influence of intoxicating beverages or narcotic drugs.

(d) Impersonating another licensee.

(e) Knowingly having professional connection with or lending one's name to a person who is not a licensee.

(f) Gross negligence, repeated or continuing acts of negligence or incompetence in the practice of optometry.

(g) Any conduct or practice, including incompetency, that constitutes a danger to the health, welfare or safety of patients or the public.

(h) Prescribing, dispensing or pretending to use any secret means, methods, device or instrumentality.

(i) Refusing to divulge to the board on demand the means, methods, device or instrumentality used for optometric examination or therapy.

(j) Representing that a manifestly not correctable condition can be permanently corrected or that a correctable condition can be corrected within a stated time if this is not accurate.

(k) Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of the profession of optometry, including advertising.

(l) Failing to comply with a board order or consent agreement.

(m) Fraud, forgery, unsworn falsification, false swearing or perjury involving a matter before the board or a written instrument submitted to the board.

(n) Wilfully and without legal justification failing to furnish in a timely manner information that is necessary for the board to conduct an investigation under this chapter and that has been requested or subpoenaed by the board.

(o) Conduct that discredits the profession.

(p) Sexual intimacies with a patient in the course of care or treatment.

(q) Falsely claiming attendance at a required continuing education course.

(r) Soliciting patients by fraudulent or misleading advertising of any kind.

(s) Aiding the practice of optometry by an unlicensed, incompetent or impaired person.

(t) Sharing fees with a person or organization in return for soliciting customers by that person or organization.

(u) Issuing a prescription order contingent on the purchase of ophthalmic services or materials.

§ 32-1702 Board of optometry; appointment; qualifications; term; removal

A. The state board of optometry is established consisting of the following members who are appointed by the governor to staggered four-year terms that end on July 1:

1. Five members who have been licensed and engaged in the active practice of optometry in this state for at least three years immediately before the appointment.

2. Two public members who do not have a direct or indirect interest in the practice of optometry, opticianry or medicine.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. The governor may remove any professional member for incompetency or unprofessional conduct or if the member's license has been revoked or suspended or if the member has been censured or placed on probation. The governor may remove any member for neglect of duty or improper conduct. The unexcused absence of a member for more than two consecutive meetings is justification for removal. Appointment by the governor to fill a vacancy caused other than by expiration of a term is for the unexpired portion of the term.

D. A member of the board is ineligible to serve more than two consecutive full terms. The completion of the unexpired portion of a full term does not constitute a full term for purposes of this subsection.

E. The board shall conduct regular meetings at least six times each year at times and places designated by the board or the governor. Special meetings may be called that the president determines are necessary to carry out the functions of the board, including meetings using communications equipment that allows all members participating in the meetings to hear each other.

F. A majority of the members of the board constitutes a quorum and a majority vote of a quorum present at any meeting governs all actions taken by the board.

§ 32-1703 Organization of board; compensation; immunity

A. The board shall annually elect from its members a president who shall be chief presiding officer of the board and such other officers as it deems appropriate and necessary to conduct its business. The board shall assign such duties as it deems appropriate to such other officers as it elects.

B. Members of the board are eligible to receive compensation as determined pursuant to section 38-611 for each day actually spent in the performance of their duties.

C. Members of the board, its agents and employees and members of advisory committees are personally immune from suit with respect to all acts done and actions taken in good faith and in furtherance of the purposes of this chapter.

§ 32-1704 Powers and duties of the board

A. The board shall adopt, and may amend, rules consistent with this chapter governing the practice of the profession of optometry, for the performance of its duties under this chapter and for the examination of applicants for licenses. The board shall adopt and use a seal, administer oaths and take testimony concerning any matter within its jurisdiction.

B. The board may not adopt a rule that:

1. Regulates a licensee's fees or charges to a patient.

2. Regulates the place in which a licensee may practice.

3. Prescribes the manner or method of accounting, billing or collection of fees.

4. Prohibits advertising by a licensee unless the advertising is inconsistent with section 44-1481.

C. The board shall maintain its records in accordance with a retention schedule approved by the Arizona state library, archives and public records.

D. The board shall adopt rules for criteria it must use to approve continuing education programs for licensees. Programs shall be designed to assist licensees to maintain competency, to become aware of new developments in the practice of the profession of optometry and to increase management skills and administrative efficiency. The board shall approve programs that meet these criteria.

E. Subject to title 41, chapter 4, article 4, the board may hire an executive director as an employee of the board. The executive director is responsible for the performance of the regular administrative functions of the board and such other administrative duties as the board may direct. The executive director is eligible to receive compensation in an amount as determined pursuant to section 38-611.

F. The board may hire investigators subject to title 41, chapter 4, article 4 or contract with investigators to assist in the investigation of violations of this chapter, hire other employees subject to title 41, chapter 4, article 4 required to carry out this chapter and contract with other state agencies when required to carry out this chapter.

G. The board may:

1. Appoint advisory committees.

2. Issue subpoenas for the attendance of witnesses and the production of books, records, documents and other evidence it deems relevant to an investigation or hearing.

3. Charge reasonable fees for materials it has printed at its own expense.

4. Delegate to the executive director, board staff and persons with whom the board contracts the board's licensing and regulatory duties. The board shall adopt rules for each specific licensing and regulatory duty the board delegates pursuant to this paragraph.

H. Subject to title 41, chapter 4, article 4, the board may hire consultants and professional and clerical personnel as required to perform its duties.

I. The board may contract with other state or federal agencies as required to carry out this chapter.

J. Subject to the limitations of section 41-2544, the executive director may enter into agreements to allow licensees to pay fees by alternative methods, including credit cards, charge cards, debit cards and electronic funds transfers.

K. A person who is aggrieved by an action taken by the executive director, board staff or person with whom the board contracts may request the board to review that action by filing with the board a written request within thirty days after that person is notified of the action by personal delivery or certified mail to that person's last known residence or place of business. At the next regular board meeting, the board shall review the action and approve, modify or reject the action.

L. The board shall report allegations of evidence of criminal wrongdoing to the appropriate criminal justice agency.

§ 32-1705 Board of optometry fund

(L24, Ch. 222, sec. 23. Eff. until 7/1/28)

A. The board of optometry fund is established.

B. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies from whatever source which come into the possession of the board in the state general fund and deposit the remaining eighty-five percent in the board of optometry fund.

C. Monies deposited in the board of optometry fund are subject to section 35-143.01.

§ 32-1705 (Version 2) Board of optometry fund

(L24, Ch. 222, sec. 24. Eff. 7/1/28)

A. The board of optometry fund is established.

B. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies from whatever source which come into the possession of the board in the state general fund and deposit the remaining ninety percent in the board of optometry fund.

C. Monies deposited in the board of optometry fund are subject to section 35-143.01.

§ 32-1706 Use of pharmaceutical agents

A. A licensee may prescribe, dispense and administer over-the-counter pharmaceuticals and topical prescription pharmaceuticals subject to the pharmaceutical agent classifications specified in section 32-1728.

B. Except as provided in subsection C of this section, a licensee may prescribe, dispense and administer the following oral prescription pharmaceuticals for treating diseases of the eye and its adnexa for any one patient for each occurrence for a period of not more than the day limit recommended by the manufacturer or the physicians' desk reference, unless otherwise specified in this subsection, subject to the pharmaceutical agent classifications specified in section 32-1728:

1. Anti-infectives classified as tetracycline and its derivatives, cephalosporins, penicillin and its derivatives, macrolides, fluroquinolones and antivirals.

2. Antihistamines.

3. Nonsteroidal anti-inflammatory agents.

4. Agents for treating angle-closure glaucoma, including carbonic anhydrase inhibitors.

5. Steroids in an amount that does not exceed the amount packaged for a single course of therapy of not more than seven days.

C. A licensee may not prescribe, dispense or administer an oral pharmaceutical specified in subsection B of this section or a controlled substance as specified in subsection D of this section to a person who is under six years of age.

D. A licensee may prescribe, dispense and administer a schedule III controlled substance only if it is an analgesic and may prescribe or administer any controlled substance only if it is an analgesic that is reclassified from schedule III to schedule II after January 1, 2014.

E. A licensee shall not prescribe, dispense or administer the following prescription substances:

1. An oral antifungal.

2. An oral antimetabolite.

3. An oral immunosuppressive.

4. A substance administered intravenously.

5. Except as provided in subsection F of this section, substances administered by injection.

6. Except as provided in subsection D of this section, a schedule I, II, IV or V controlled substance.

F. A licensee may use epinephrine delivery systems to counteract an anaphylactic reaction.

Article 2 Licensing

§ 32-1721 Persons and acts not affected by this chapter

This chapter does not apply to:

1. Physicians and surgeons duly licensed to practice medicine and surgery in this state, if they are practicing lawfully.

2. Dispensing opticians duly licensed to practice, if they are practicing lawfully in accordance with the provisions of section 32-1671.

3. The sale of complete ready-to-wear eyeglasses as merchandise from a permanently established place of business.

4. A licensed or unlicensed individual performing duties delegated under the authority of a licensee.

§ 32-1722 Qualifications of applicant; applications

A. A person who wishes to engage in the practice of the profession of optometry shall file with the board a verified application with the required application fee that includes:

1. The applicant's name, age and address.

2. Documentation of graduation from a university or college that teaches the profession of optometry and that is accredited by a nationally accepted accrediting body on optometric education.

3. Documentation of satisfactory completion of an equivalent course of study that is approved by the board in didactic education, pharmacology and clinical training in the examination, diagnosis and treatment of conditions of the human eye and its adnexa and that either:

(a) Meets the contemporary educational requirements at colleges of optometry in the United States.

(b) Totals at least one hundred twenty hours.

4. Documentation of the successful passage of a written examination as prescribed by the board.

5. Background information on a form prescribed by the attorney general for the purpose of conducting an investigation into the existence of prior arrests and convictions.

6. Disclosure of any investigation conducted or pending by an optometric regulatory board in another jurisdiction in the United States.

B. On receipt of an application in proper form and containing the information prescribed in subsection A of this section, the board may investigate the applicant's ability and experience.

C. For the purposes of an investigation that is conducted pursuant to subsection B of this section, the board may subpoena witnesses, administer oaths and take testimony with respect to any matter affecting the application at a hearing held after sufficient notice has been given.

D. If the board finds that the applicant has passed the examination provided for under section 32-1724 and that the applicant's ability and experience are satisfactory, the board shall issue a license.

§ 32-1723 Licensure by endorsement

The board shall waive the written examination requirements of this chapter if all of the following are true:

1. The applicant submits a license or a certified copy of a license to practice optometry issued by the regulatory board of another jurisdiction of the United States that has licensure requirements that the board determines meet or exceed the requirements of this chapter.

2. The license of the applicant has not been suspended or revoked by any other licensing jurisdiction of the United States for any cause that is a ground for suspension or revocation of a license under this chapter.

3. The applicant has been engaged in the practice of the profession of optometry continuously in the other licensing jurisdiction or in a United States military branch of service for not less than four of the five years immediately preceding the application.

4. The information provided by national data banks designated by the board has successfully verified the applicant.

§ 32-1724 Examination of applicants; time of examination

A. Licensing examinations shall be conducted and graded according to rules prescribed by the board. The board shall not grade examinations on a curve.

B. The board may give applicants a written examination on subjects currently being taught in universities or colleges of optometry as well as on this state's statutes and rules relating to the practice of optometry. In lieu of its written examination for licensure, the board may accept documentation from the national board of examiners in optometry that shows that an applicant has passed board designated parts of the national board's examination. To receive a passing grade on a written examination administered by the board, an applicant shall receive a grade of not less than seventy-five per cent on the whole written examination and not less than fifty per cent in any one subject.

C. The board may give applicants a practical examination on subjects currently being taught in universities or colleges of optometry and shall give an examination on this state's statutes and rules relating to optometry. In lieu of its practical examination for licensure, the board may accept documentation from the national board of examiners in optometry that shows that the applicant has passed board designated parts of the national board’s examination. To receive a passing grade on a practical examination, an applicant shall receive a grade of not less than seventy-five per cent.

D. Examinations shall be held at least once each year. Notice of examinations shall be given not less than sixty days before the date of examination. The board shall adopt rules to establish conditions under which an applicant who is unable to take the examination and who notifies the board before the date fixed for the examination may take the next examination.

§ 32-1725 Issuance and display of license and certificate

A. The board shall issue to each applicant who satisfactorily passes the examination and who pays the license issuance fee pursuant to section 32-1727 a license under the seal and signatures of the members of the board. An applicant who does not pay the issuance fee within sixty days must submit a new application and all applicable fees pursuant to section 32-1727.

B. A person who holds a license or certificate pursuant to this chapter must display the current, original document in a conspicuous place that is accessible to the public.

C. A person who practices, conducts business or is employed at more than one location and who maintains a continuing activity as authorized by the license or certificate must display a board-issued duplicate of that document at each location.

§ 32-1726 Renewal of license; continuing education; failure to renew

A. Except as provided in section 32-4301, beginning on September 1, 2001, a licensee who wishes to renew a license must do so every other year on or before the licensee's birthday by submitting a completed renewal form and the renewal fee prescribed by the board. A licensee who does not renew a license within thirty days after the licensee's birthday must also pay a late fee as prescribed by the board. A license expires if the licensee does not renew the license within four months after the licensee's birthday. A person who practices optometry in this state after that person's license has expired is in violation of this chapter.

B. As a condition of renewal or reinstatement each licensee shall complete thirty-two hours of continuing education as prescribed by the board. The board shall require continuing education on the subject of pharmaceutical use for doctors who are authorized by the board to prescribe, dispense, and administer pharmaceuticals. The board may waive or adjust the continuing education requirements for good cause shown.

C. To reinstate an expired license a person must submit a written application and pay all delinquent biennial fees, all late fees and a fifty dollar penalty fee for each year the license remains unrenewed. The board shall not require the applicant to pass an initial licensing examination if the applicant meets the requirements of this subsection within five years after the license expired.

D. A person holding a license to practice the profession of optometry in this state who has not engaged in the practice of the profession of optometry within a five year period shall pass an initial licensing examination before the license is renewed.

§ 32-1727 Fees

A. The following fees shall be paid to the board:

1. Filing an application for examination, one hundred fifty dollars.

2. License issuance fee as established by the board.

3. Renewal of a license to practice the profession of optometry as established by the board.

4. Late renewal of a license as established by the board.

5. Application for a license by endorsement, three hundred dollars.

6. Duplicate license fee, thirty dollars.

7. Certificates of special qualification, twenty dollars.

8. Duplicate certificates of special qualification, twenty dollars.

9. Optometry statute pamphlet fee, five dollars.

B. Fees are not refundable.

§ 32-1728 Pharmaceutical agents; certification; use; course of study

A. A licensee initially licensed after the effective date of the amendment to this section, a licensee licensed by endorsement after the effective date of the amendment to this section or a licensee who passed an examination conducted by the board for the use of oral pharmaceutical agents before the effective date of the amendment to this section may prescribe, dispense and administer a pharmaceutical agent subject to the limitations provided in this chapter.

B. The board may reissue a certificate for renewal for the use of pharmaceutical agents for topical diagnostic or topical therapeutic pharmaceutical agents, or both, to a person who holds an existing certificate issued on or before the effective date of the amendment to this section and who pays the certificate of special qualification fee prescribed in section 32-1727. The certificate may specify the following:

1. Use of no drugs.

2. Use of topical diagnostic agents.

3. Use of topical diagnostic and therapeutic agents.

C. The board may issue a certificate of special qualification to practice optometry without the use of pharmaceutical agents to a person who holds a current license as of July 1, 2000 and who pays the certificate of special qualification fee prescribed in section 32-1727.

D. The board shall adopt a course of study for certification to use oral pharmaceuticals after consultation with colleges of optometry accredited by a nationally accepted accrediting body on optometric education and with the college of pharmacy at the university of Arizona. The board shall design and implement the course in a manner that requires a licensee who wishes to have the privilege of dispensing, prescribing and administering topical and oral pharmaceutical agents pursuant to this chapter meet the contemporary educational requirements related to pharmaceuticals authorized for licensees pursuant to this chapter at colleges of optometry in the United States and to demonstrate competence in dispensing, prescribing and administering those topical or oral pharmaceutical agents by passing examinations in those areas commensurate with doctoral candidates in colleges of optometry in the United States. The course of study shall teach and certify competence in the prescription and administration of topical or oral pharmaceutical agents pursuant to this chapter. The board shall adopt the course of study and completion requirements to reflect the current course of study and demonstrated competence level of pharmacy programs in colleges of optometry in the United States. The board may offer a course and examination that otherwise meets the requirements of this subsection and that is limited to oral pharmaceuticals for licensees who hold a valid diagnostic and therapeutic topical pharmaceutical permit issued pursuant to subsection A of this section.

E. The board shall adopt a uniform prescription form for use by all licensees who have the privilege to prescribe, dispense and administer topical pharmaceuticals or oral pharmaceuticals. The prescription form shall indicate the prescribing authority of the licensees and whether the authority includes oral pharmaceuticals, topical pharmaceuticals or both oral pharmaceuticals and topical pharmaceuticals. The form shall include the name, address, telephone number, fax number and professional license number of the licensee.

F. Annually on or before January 1 the state board of optometry shall mail to the Arizona state board of pharmacy the list of all licensees who have been certified to prescribe, dispense and administer either oral pharmaceuticals or topical pharmaceuticals, or both. Within thirty days of any additional certification by the state board of optometry, the state board of optometry shall provide updated lists to the Arizona state board of pharmacy. At the same time the state board of optometry shall send the list to each licensed pharmacy in Arizona, excluding hospital pharmacies, long-term care pharmacies and infusion pharmacies.

§ 32-1730 Fingerprinting

A. Each applicant for licensure and license reinstatement pursuant to this chapter shall submit a full set of fingerprints to the board for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

B. If the board does not have any evidence or reasonable suspicion that the applicant has a criminal history, the board may issue a license before it receives the results of a criminal records check.

C. The board shall suspend a license of a person who submits an unreadable set of fingerprints and does not submit a new readable set of fingerprints within twenty days after being notified by the board to do so.

D. This section does not affect the board's authority to otherwise issue, deny, cancel, terminate, suspend or revoke a license.

Article 3 Regulation

§ 32-1741 Practicing optometry without a license prohibited

It is unlawful for a person to practice the profession of optometry or to hold himself out to be or assume or attempt to act as a doctor of optometry without a valid license to practice the profession of optometry.

§ 32-1742 Registering with board; public registry file; current information

A. Each licensee shall provide the board in writing the addresses of all permanent and extended temporary locations in which the licensee practices and the licensee's office telephone numbers, mailing address and residence address. Any notice required to be given by the board to a licensee shall be sent by mail to the licensee's most current mailing address shown on the records of the board. The board may attempt to give or serve notice at any other address or location on file with the board if service to the mailing address is unsuccessful. Service of a required notice is complete on the date of mailing to the licensee's mailing address.

B. The board shall maintain a current registry of each licensee's name, office locations and mailing address. The registry is open to the public.

C. Each licensee shall give written notice to the board within ten days following each change in the licensee's residence address, mailing address, office location or office telephone number.

§ 32-1743 Grounds for censure, civil penalty, probation, suspension, revocation, denial or renewal of license, certificate or registration

A. After notice and a hearing the board in its discretion may censure, impose a civil penalty, prescribe probation, suspend or revoke the license of a doctor of optometry or refuse to issue or renew a license, certificate or registration for any of the following reasons:

1. Being convicted of a felony or any offense involving moral turpitude.

2. Procuring or attempting to procure a license to practice optometry or a certificate to use pharmaceutical agents by fraud, deceit, misrepresentation or knowingly taking advantage of the mistake of another person or agency.

3. Committing conduct likely to deceive or defraud the public.

4. Committing unprofessional conduct.

5. Employing a solicitor to solicit business or soliciting from house to house or person to person.

6. Obtaining a fee or compensation by fraud or misrepresentation.

7. Employing a person to engage in the practice of the profession of optometry who does not hold a license to practice the profession of optometry in this state.

8. Using any device to evade or defeat the provisions of this chapter, such as a profit sharing plan or partnership with a person not licensed to practice the profession of optometry in this state.

9. Committing the practice of the profession of optometry under a false or assumed name.

10. Violating any provision of this chapter or any board order.

11. Violating any of the rules adopted by the board pursuant to this chapter.

12. Violating any statutes, laws or rules regulating the practice of optometry in this state or any other jurisdiction in the United States.

13. Providing any controlled substance or pharmaceutical agent that is not authorized by this chapter or providing any controlled substance or prescription-only drug for other than accepted therapeutic purposes for diagnosis and treatment of conditions of the human eye and its adnexa.

14. Dispensing a schedule II controlled substance that is an opioid.

15. Committing gross malpractice or repeated acts constituting malpractice.

16. Failing to maintain or submit records as required by this chapter.

B. To determine the appropriate disciplinary action pursuant to this section, the board may consider any previous nondisciplinary and disciplinary actions against a licensee.

§ 32-1744 Board investigations; duty to report violations; hearing; decision of board; informal settlement conference

A. The board on its own motion shall investigate any evidence that appears to show that a licensee may be guilty of a violation of section 32-1743. Any person may report to the board information the person may have that appears to show that a licensee may be guilty of unprofessional conduct or of practice without regard for the safety and welfare of the public. A person who reports or provides information to the board in good faith is not subject to civil damages as a result. The name of the person reporting information pursuant to this subsection is subject to the disclosure requirements prescribed in section 41-1010.

B. The board or its designee shall register and investigate all complaints. On receipt of a complaint, the board or its designee shall send the licensee a copy of the complaint for a response. The board shall review the complaint and response and may dismiss the complaint, investigate it further or bring its own complaint against the licensee. The board may resolve a disciplinary matter informally or after a formal hearing. The board or its designee shall inform the complainant of the findings of the investigation and the resolution of the complaint.

C. The board, its designee or the executive director shall require a licensee to provide a written response to a complaint within twenty days after the licensee receives the notification of complaint.

D. Except as provided in subsection F of this section, if in the opinion of the board it appears that information provided under subsection A of this section may be accurate and a violation of this chapter, the board shall request an informal interview with the licensee before proceeding to a formal hearing. If the licensee refuses an invitation for an informal interview, or if the licensee accepts the invitation and if the results of the interview indicate suspension or revocation of license may be in order, a complaint shall be issued and a formal hearing held pursuant to title 41, chapter 6, article 10. If at the informal interview the board finds the information provided under subsection A of this section is accurate but not of sufficient seriousness to merit suspension exceeding thirty days or revocation of the license, it may take any or all of the following actions:

1. Issue a decree of censure or written reprimand.

2. Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate the licensee. Probation may include a requirement for a refund of fees and charges to professional services clients resulting from services performed in violation of this chapter or rules adopted pursuant to this chapter, restriction of a license to practice or temporary suspension not to exceed thirty days. Failure to comply with probation is cause for filing a complaint and holding a formal hearing pursuant to title 41, chapter 6, article 10.

3. Impose a civil penalty of not more than five thousand dollars for each violation of this chapter.

4. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

E. If the board determines that a reasonable basis exists to believe that a violation of this chapter or rules adopted pursuant to this chapter has occurred and the violation is not sufficiently serious to warrant disciplinary action, it may send a letter of concern to the licensee. The letter of concern shall advise the licensee of the possible violation and the board's decision not to initiate proceedings. If violations occur after the board sends a letter of concern, the board may initiate proceedings on all violations, including the violation that was the subject of the letter of concern.

F. If in the opinion of the board it appears that information provided under subsection A of this section may be accurate, the board may issue a complaint and hold a formal hearing pursuant to title 41, chapter 6, article 10 without first holding an informal interview if the probable violation involves one or more of the following:

1. Gross negligence.

2. Fraud, forgery, unsworn falsification, false swearing or perjury.

3. Three or more repeated offenses.

4. Conviction of a felony.

5. Conviction of an offense involving moral turpitude.

6. Incompetence.

7. Failing to comply with a board order or consent agreement.

8. Wilfully and without legal justification failing to furnish in a timely manner information necessary for the board to conduct an investigation under this chapter that has been requested or subpoenaed by the board.

G. The board shall serve on the licensee a notice fully setting forth the conduct or inability concerned and returnable at a hearing to be held before the board or an administrative law judge in not less than thirty days, stating the time and place of the hearing. A licensee who has been notified of a complaint pursuant to this subsection must file with the board a written response not more than twenty days after service of the complaint and notice of hearing. If the licensee fails to answer in writing, it is deemed an admission of the act or acts charged in the complaint and notice of hearing. The board may then take disciplinary action pursuant to this chapter without a hearing.

H. At the expense of the licensee, the board may require a medical, mental or physical examination and make an investigation, including, if necessary, the issuance of subpoenas, the appointment of advisory committees, the employment of expert witnesses or otherwise, as may be required fully to inform itself with respect to the complaint.

I. A person may file a motion with the board for an expedited hearing pursuant to section 41-1092.05.

J. If the licensee wishes to be present at the hearing in person or by representation, or both, the licensee shall file with the board an answer to the charges in the complaint. The answer shall be in writing, verified under oath and filed within twenty days after service of the summons and complaint.

K. At the hearing held in compliance with subsection G of this section, a licensee may be present in person together with any counsel and witnesses the licensee chooses.

L. The board shall issue subpoenas for witnesses it may need and, at the respondent's expense, for witnesses the respondent may request. All provisions of law compelling a person under subpoena to testify are applicable to a hearing held pursuant to this section.

M. The board shall serve every notice or decision under this article by any method reasonably calculated to effect actual notice on the board and every other party to the action to the party's last address of record with the board. Each party shall inform the board of any change of address within five days after the change.

N. A licensee who, after a hearing, is found to be guilty by the board of a violation of this chapter is subject to censure, probation or civil penalty as provided in subsection D of this section, suspension of license or revocation of license, or any combination of these, and for the period of time or permanently and under the conditions the board deems appropriate for the protection of the public health and safety and just in the circumstances. The board may charge the costs of formal hearings to the licensee who is in violation of this chapter.

O. The board shall issue a written decision within twenty days after the hearing is concluded. The written decision shall contain a concise explanation of the reasons supporting the decision. The board shall serve a copy of the decision on the licensee. On the licensee's request, the board shall also transmit to the licensee the record of the hearing.

P. Except as provided in this subsection, all materials, documents and evidence associated with a pending or resolved complaint or investigation are confidential and are not public records. The following materials, documents and evidence are not confidential and are public records if they are related to resolved complaints and comply with subsection A of this section:

1. The complaint.

2. The response and any rebuttal statements submitted by the licensee.

3. Written or recorded board discussions of the complaint.

4. Written reports of an investigation of a complaint.

5. Disposition of the complaint, including any written comments of the board.

Q. This section or any other law making communications between a licensee and the licensee's patient a privileged communication does not apply to investigations or proceedings conducted pursuant to this chapter. The board and its employees, agents and representatives shall keep in confidence the names of any patients whose records are reviewed during the course of investigations and proceedings pursuant to this chapter.

R. Any action of the board shall be included in the minutes of the meeting at which the action is taken, including any determination by the board not to proceed under this section. The person reporting information to the board shall receive a copy of any final decision.

S. Pursuant to sections 35-146 and 35-147, the board shall deposit civil penalties collected pursuant to this chapter in the state general fund.

T. A licensee who is the subject of a disciplinary action may request an informal settlement conference. The licensee must submit a request for an informal settlement conference to the board in writing. The board shall hold an informal settlement conference within fifteen days after it receives a request to do so from the licensee. Only a person with the authority to act on behalf of the board may represent the board at the informal settlement conference. The board representative shall notify the licensee in writing that any written or oral statement made by the licensee at the informal settlement conference, including statements for the purpose of settlement negotiations, is inadmissible in any subsequent hearing. A licensee who participates in an informal settlement conference waives the right to object to the participation of the board representative in the final administrative decision.

§ 32-1745 Prehearing conferences; orders

A. On the written request of a licensee, the board may schedule a prehearing conference at least ten days before the hearing date scheduled pursuant to section 32-1744. The board shall notify the licensee who requested a prehearing conference of its decision within five business days. If the board agrees to hold a prehearing conference the notification shall include the date, time and place of the conference.

B. To promote the orderly and prompt conduct of the hearing, the board may use a prehearing conference for the purposes prescribed in section 41-1092.05, subsection F and for any other matter related to the hearing.

C. The board may conduct all or part of the prehearing conference by electronic means if each party in the prehearing conference can hear and has an opportunity to participate during the entire conference.

D. After a prehearing conference and before the hearing, the board shall enter an order verbally on the record or in writing. The order shall state the stipulations and admissions made, actions taken and other matters resolved. The board shall modify this order only to prevent manifest injustice, as determined by the board.

E. Whether or not a prehearing conference is held, the board may issue an order to regulate the conduct of the hearing and to limit the issues to those raised in the pleadings.

§ 32-1746 Records; maintenance; confidentiality

A. A licensee must allow the board to inspect patient records during normal business hours. Before a licensee may change the location of patient records, the licensee must file a signed statement with the board that discloses the new address where the licensee will maintain the records.

B. All patient records, examination materials, records of examination grading and performance and transcripts of educational institutions concerning applicants and licensees are confidential and are not public records.

§ 32-1747 Right to examine and copy evidence

In connection with the investigation by the board on its own motion or as the result of information received pursuant to section 32-1744, the board or its duly authorized agents or employees may examine and copy during normal business hours any documents, reports, records or other physical evidence of any person being investigated, or the reports, the records and any other documents maintained by and in possession of any hospital, clinic, physician's office, laboratory, pharmacy or other public or private agency, and any health care institution as defined in section 36-401, if the documents, reports, records or evidence relates to competence, unprofessional conduct or the mental or physical ability of a licensee to safely practice the profession of optometry.

§ 32-1747.01 Medical, physical or mental examinations; duty to report; immunity

A. If the board believes, based on its own information or a complaint or inquiry directed to the board, that a licensee is suffering from a medical, physical or mental condition that might impede the licensee's ability to practice competently, the board may order the licensee to undergo a medical, physical or mental examination by persons designated by the board, at the licensee's expense.

B. A licensee's failure to submit to an examination directed by the board is an admission of the allegations, and the board may take appropriate action to protect the public health and safety.

C. The board, at reasonable intervals, shall allow a licensee whose license has been suspended, limited or revoked pursuant to this section to demonstrate that the licensee is able to resume the competent practice of optometry with reasonable skill and safety to patients.

D. If a licensee has reason to believe that another licensee has engaged in unprofessional conduct, the licensee must report the licensee to the board. The board shall not disclose the identity of the reporting licensee until the board completes its investigation. The board shall not disclose the name of the licensee under investigation until it completes its investigation.

E. The board shall record and assign a case number to each complaint or allegation it receives.

F. A licensee who reports information to the board pursuant to this section or testifies in any related investigation in good faith is not subject to civil liability.

§ 32-1748 Reinstatement; definition

A. On written application and for good cause shown, the board may issue a new license to a doctor of optometry whose license has been revoked, reissue a license or modify the suspension of any license to practice optometry that has been suspended.

B. A person applying for reinstatement of a revoked license, in addition to the requirements of this section, shall comply with all initial licensing requirements in existence at the time of the application for reinstatement, except those requirements that are inconsistent with this section.

C. The board shall not issue a new license or reissue a license to a doctor of optometry whose license has been revoked until two years after the effective date of the revocation, except that if the revocation is based only on section 32-1743, subsection A, paragraph 1 and the conviction is ultimately reversed on appeal, the board shall enter an order vacating the revocation.

D. For the purposes of this section, "good cause shown" means that the person making application for reinstatement or reissuance shall demonstrate through substantial evidence presented to the board that the person is completely rehabilitated with respect to the conduct that was the basis of the revocation or suspension of the license. Demonstration of rehabilitation shall include:

1. Evidence that the person has not engaged in any conduct during the revocation or suspension period that, if the person had been licensed during that period, would have constituted a basis for revocation or suspension pursuant to section 32-1743.

2. Evidence that, with respect to any criminal conviction that constituted any part of the basis for the previous revocation or suspension, the person's civil rights have been fully restored pursuant to statute or other applicable recognized judicial or gubernatorial order.

3. Evidence that restitution has been made to any aggrieved party as ordered by a court of competent jurisdiction.

4. Other evidence of rehabilitation the board deems appropriate.

§ 32-1749 Judicial review

Except as provided in section 41-1092.08, subsection H, a doctor of optometry aggrieved by a final decision of the board in a disciplinary proceeding is entitled to judicial review pursuant to title 12, chapter 7, article 6 in superior court in Maricopa county.

§ 32-1750 Allegations sufficient to charge violation

In charging a person in a complaint for an injunction or in an affidavit, information or indictment with a violation of this chapter by practicing the profession of optometry without a license, it is sufficient to charge that he did upon a certain day and in a certain county engage in the practice of the profession of optometry, not having a valid license to do so, without averring any more particular facts concerning the act.

§ 32-1751 Cease and desist orders; injunctive relief

A. In addition to all other remedies, if after conducting an investigation, either on complaint or otherwise, and for good cause shown it appears to the board that any person has engaged in or is engaging in an act, practice or transaction that violates this chapter or any rule or order of the board, the board may do either of the following:

1. Serve on the person by certified mail or personal service a cease and desist order requiring the person to cease and desist immediately, on receipt of the notice, from engaging in the act, practice or transaction. If the board issues a cease and desist order it shall conduct a hearing within thirty days to determine whether the order should be continued or eliminated and to determine whether the board should take other appropriate action.

2. Through the attorney general or the county attorney of the county in which the violation is alleged to have occurred apply to the superior court in that county for an injunction restraining that person from engaging in the violation.

B. The court shall issue a temporary restraining order, a preliminary injunction or a permanent injunction without requiring the board to post a bond.

C. Service of process may be on the defendant in any county of this state where the defendant is found.

D. Violation of an injunction is punishable as contempt of court.

E. An injunction does not relieve a person practicing the profession of optometry without a license from criminal prosecution but is in addition to any remedy provided for the criminal prosecution.

§ 32-1752 Violation; classification

A person who practices the profession of optometry without at the time having a valid license to practice, or who files or attempts to file with the board of optometry practice locations under a license issued to another, claiming to be the person entitled to practice under such license, is guilty of a class 2 misdemeanor.

§ 32-1753 Practice designations; definition

A. A licensee must practice the profession of optometry only as either:

1. A sole practitioner.

2. A partner with other health professionals.

3. A professional limited liability company in which health professionals collectively possess at least fifty-one per cent of the ownership interest.

4. A professional corporation in which health professionals collectively possess at least fifty-one per cent of the ownership interest.

5. An employee or independent contractor in any of the categories listed in this subsection.

B. A licensee must practice only under the name under which the licensee is registered with the board, which may include a trade name.

C. For purposes of this section, "health professional" means a currently licensed member of the health professions as defined in section 32-3101.

Article 4 Referral

§ 32-1761 Referral of patient to licensed physician required on finding of certain symptomatic conditions

An optometrist licensed pursuant to this chapter and providing service to any person shall refer such person to a physician licensed pursuant to chapter 13 or 17 of this title when such optometrist finds an indication of the presence of a disease or condition of the eye requiring treatment outside the scope of practice of the profession of optometry as defined in section 32-1701.

Article 5 Dispensers of Contact Lenses

§ 32-1771 Dispensing contact lenses; conformity with federal law; requirements

A. All sales of and prescriptions for contact lenses in this state must conform to the federal fairness to contact lens consumers act (15 United States Code sections 7601 through 7610).

B. Contact lenses used to determine a prescription for contact lenses are considered to be diagnostic lenses. After the diagnostic and trial period and after the contact lenses have been adequately fitted and the patient has been released from immediate follow-up care by a person who is licensed pursuant to this chapter or chapter 13 or 17 of this title, the prescribing optometrist shall provide a prescription for contact lenses at no cost to the patient.

C. Contact lenses may not be sold or dispensed except pursuant to a prescription order that conforms to state and federal regulations governing prescriptions.

Chapter 17 Osteopathic Physicians and Surgeons

Article 1 Board of Osteopathic Examiners in Medicine and Surgery

§ 32-1800 Definitions

In this chapter, unless the context otherwise requires:

1. "Active license" means a valid license to practice medicine and includes the license of a licensee who has been placed on probation or on whose license the board has placed restrictions.

2. "Address of record" means either:

(a) The address where a person who is regulated pursuant to this chapter practices medicine or is otherwise employed.

(b) The residential address of a person who is regulated pursuant to this chapter if that person has made a written request to the board that the board use that address as the address of record.

3. "Adequate records" means legible medical records containing, at a minimum, sufficient information to identify the patient, support the diagnosis, justify the treatment, accurately document the results, indicate advice and cautionary warnings provided to the patient and provide sufficient information for another licensed health care practitioner to assume continuity of the patient's care at any point in the course of treatment.

4. "Administrative warning" means a disciplinary action by the board in the form of a written warning to a physician of a violation of this chapter involving patient care that the board determines falls below the community standard.

5. "Approved postgraduate training program" means that an applicant for licensure successfully completed training when the hospital or other facility in which the training occurred was approved for a postgraduate internship, residency or fellowship by the American osteopathic association or by the accreditation council for graduate medical education.

6. "Approved school of osteopathic medicine" means a school or college offering a course of study that, on successful completion, results in the awarding of the degree of doctor of osteopathy and whose course of study has been approved or accredited by the American osteopathic association.

7. "Board" means the Arizona board of osteopathic examiners in medicine and surgery.

8. "Decree of censure" means a formal written reprimand by the board of a physician for a violation of this chapter that constitutes a disciplinary action against a physician's license.

9. "Direct supervision" means that a physician is within the same room or office suite as the unlicensed person in order to be available for consultation regarding those tasks the unlicensed person performs pursuant to section 32-1859.

10. "Dispense" means the delivery by a physician of a prescription drug or device to a patient, except for samples packaged for individual use by licensed manufacturers or repackagers of drugs, and includes the prescribing, administering, packaging, labeling and security necessary to prepare and safeguard the drug or device for delivery.

11. "Doctor of osteopathy" means a person who holds a license, registration or permit to practice medicine pursuant to this chapter.

12. "Immediate family" means the spouse, natural or adopted children, father, mother, brothers and sisters of the physician and the natural and adopted children, father, mother, brothers and sisters of the physician's spouse.

13. "Inappropriate fee" means a fee that is not supported by documentation of time, complexity or extreme skill required to perform the service.

14. "Investigative hearing" means a meeting between the board and a physician to discuss issues set forth in the investigative hearing notice and during which the board may hear statements from board staff, the complainant, the physician and witnesses, if any.

15. "Letter of concern" means an advisory letter to notify a physician that while there is insufficient evidence to support disciplinary action against the physician's license there is sufficient evidence for the board to notify the physician of its concern.

16. "Limited license" means a license that restricts the scope and setting of a licensee's practice.

17. "Medical assistant" means an unlicensed person who has completed an educational program approved by the board, who assists in a medical practice under the supervision of a doctor of osteopathic medicine and who performs delegated procedures commensurate with the assistant's education and training but who does not diagnose, interpret, design or modify established treatment programs or violate any statute.

18. "Medicine" means osteopathic medicine as practiced by a person who receives a degree of doctor of osteopathy.

19. "Physician" means a doctor of osteopathy who holds a license, a permit or a locum tenens registration to practice osteopathic medicine pursuant to this chapter.

20. "Practice of medicine" or "practice of osteopathic medicine" means all of the following:

(a) To examine, diagnose, treat, prescribe for, palliate, prevent or correct human diseases, injuries, ailments, infirmities and deformities, physical or mental conditions, real or imaginary, by the use of drugs, surgery, manipulation, electricity or any physical, mechanical or other means as provided by this chapter.

(b) Suggesting, recommending, prescribing or administering any form of treatment, operation or healing for the intended palliation, relief or cure of any physical or mental disease, ailment, injury, condition or defect.

(c) The practice of osteopathic medicine alone or the practice of osteopathic surgery or osteopathic manipulative therapy, or any combination of either practice.

21. "Specialist" means a physician who has successfully completed postdoctoral training in an approved postgraduate training program, an approved preceptorship or an approved residency or who is board certified by a specialty board approved by the board.

22. "Subscription provider of health care" means an entity that, through contractual agreement, is responsible for the payment, in whole or in part, of debts incurred by a person for medical or other health care services.

§ 32-1801 Arizona board of osteopathic examiners in medicine and surgery

A. The Arizona board of osteopathic examiners in medicine and surgery is established consisting of seven members appointed by the governor. One member of the board shall be appointed each year for a term of five years, to begin and end on April 15.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. Two members of the board shall be public members who shall not be in any manner connected with, or have an interest in, any school of medicine or any person practicing any form of healing or treatment of bodily or mental ailments and who has demonstrated an interest in the health problems of the state. The other five members of the board shall have engaged in the practice of medicine as an osteopathic physician in this state for at least five years preceding their appointments, hold active licenses in good standing and, at the time of appointment, be practicing medicine with direct patient contact. In making appointments of each professional member of the board, the governor shall consider a list of qualified persons submitted by the Arizona osteopathic medical association and recommendations by any other person. Members of the board shall continue in office until their successors are appointed and qualified. Each board member, before entering on his duties, shall take an oath prescribed by law and in addition thereto shall make an oath as to his qualifications as prescribed in this section. No board member may serve more than two consecutive five year terms.

D. The governor may remove board members if they fail to attend three or more board meetings within twelve months. This does not include telephonic meetings of the board. The governor may also remove board members for malfeasance, misfeasance or incompetence in their office, unprofessional or dishonorable conduct in their office or unprofessional or dishonorable conduct. The governor shall appoint a qualified replacement to fill a vacant position for the unexpired portion of the term.

§ 32-1802 Meetings; organization; compensation; committees

A. The board shall hold an annual meeting during the month of January each year in the Phoenix metropolitan area and may hold other meetings at times and places determined by a majority of the board on notice to each member and the general public pursuant to title 38, chapter 3, article 3.1. A majority of the members of the board constitutes a quorum, and a majority vote of a quorum present at any meeting governs all board actions.

B. At each annual meeting the board shall select from among its membership a president and vice-president who shall serve until their successors are chosen. If either of these offices becomes vacant before the annual meeting, the board may elect a replacement at any other board meeting.

C. Members of the board are eligible to receive compensation in the amount of two hundred fifty dollars for each day of actual service in the business of the board and reimbursement of all expenses necessarily and properly incurred in attending meetings of the board.

D. Board members, the executive director, permanent or temporary board personnel, board consultants, committee members and professional medical investigators are immune from civil liability for any act they do in good faith to implement this chapter.

E. To carry out the functions of the board, the board president may establish committees and define committee duties. The president shall name at least one board member to each committee the president establishes.

§ 32-1803 Powers and duties

A. The board shall:

1. Protect the public from unlawful, incompetent, unqualified, impaired and unprofessional practitioners of osteopathic medicine.

2. Issue licenses, conduct hearings, place physicians on probation, revoke or suspend licenses, enter into stipulated orders, issue letters of concern or decrees of censure and administer and enforce this chapter.

3. Maintain a record of its acts and proceedings, including the issuance, denial, renewal, suspension or revocation of licenses to practice according to this chapter. The board shall delete records of complaints only as follows:

(a) If the board dismisses a complaint, the board shall delete the public record of the complaint five years after the board dismissed the complaint.

(b) If the board has issued a letter of concern but has taken no further action on the complaint, the board shall delete the public record of the complaint five years after the board issued the letter of concern.

(c) If the board has required additional continuing medical education pursuant to section 32-1855 but has not taken further action, the board shall delete the public record of the complaint five years after the person satisfies this requirement.

4. Maintain a public directory of all physicians and surgeons who are or were licensed pursuant to this chapter that includes:

(a) The name of the physician.

(b) The physician's current or last known address of record.

(c) The date and number of the license issued to the physician pursuant to this chapter.

(d) The date the license is scheduled to expire if not renewed or the date the license expired or was revoked, suspended or canceled.

(e) Any disciplinary actions taken against the physician by the board.

(f) Letters of concern, remedial continuing medical education ordered and dismissals of complaints against the physician until deleted from the public record pursuant to paragraph 3 of this subsection.

5. Adopt rules regarding the regulation, qualifications and training of medical assistants. The training requirements for a medical assistant may be satisfied through a training program that meets all of the following:

(a) Is designed and offered by a physician.

(b) Meets or exceeds any of the approved training program requirements specified in rule.

(c) Verifies the entry-level competencies of a medical assistant as prescribed by rule.

(d) Provides written verification to the individual of successful completion of the program.

6. Discipline and rehabilitate osteopathic physicians.

7. Determine whether a prospective or current Arizona licensed physician has the training or experience to demonstrate the physician's ability to treat and manage opiate-dependent patients as a qualifying physician pursuant to 21 United States Code section 823(g)(2)(G)(ii).

8. Issue registrations to administer general anesthesia and sedation in dental offices and dental clinics pursuant to section 32-1272 to physicians who have completed residency training in anesthesiology.

B. The public records of the board are open to inspection at all times during office hours.

C. The board may:

1. Adopt rules necessary or proper to administer this chapter.

2. Appoint one of its members to the jurisdiction arbitration panel pursuant to section 32-2907, subsection B.

3. Accept and spend federal monies and private grants, gifts, contributions and devises. These monies do not revert to the state general fund at the end of a fiscal year.

4. Develop and publish advisory opinions and standards governing the profession.

D. The board shall adopt and use a seal, the imprint of which, together with the signature of either the president, vice president or executive director, is evidence of its official acts.

E. In conducting investigations pursuant to this chapter, the board may receive and review confidential internal staff reports relating to complaints and malpractice claims.

F. The board may make available to academic and research organizations public records regarding statistical information on doctors of osteopathic medicine and applicants for licensure.

§ 32-1804 Executive director; compensation; duties

A. Subject to title 41, chapter 4, article 4, the board shall appoint an executive director who is not a member of the board. The executive director shall serve at the pleasure of the board and shall receive compensation as determined pursuant to section 38-611 to be paid from the board fund.

B. The executive director or that person's designee shall:

1. Serve as administrative assistant to the board and manage the board's offices.

2. Collect all monies due and payable to the board.

3. Deposit, pursuant to sections 35-146 and 35-147, all monies received by the board in the appropriate fund.

4. Pay all bills for authorized board expenditures.

5. Administer oaths.

6. Act as custodian of the board's seal and books.

7. Employ special consultants or other agents subject to title 41, chapter 4, article 4 to make investigations, gather information, review complaints, review malpractice claims, suits and settlements, prepare reports and perform other duties the executive director determines are necessary to enforce this chapter.

8. Subject to title 41, chapter 4, article 4 and, as applicable, articles 5 and 6, employ, evaluate, dismiss, discipline and direct professional, clerical, technical, investigative and administrative personnel necessary to carry out the purposes of this chapter. The personnel are eligible to receive compensation pursuant to section 38-611.

9. Issue licenses, limited licenses, registrations, permits, license renewal extensions and waivers to applicants who meet the requirements of this chapter.

10. Enter into contracts pursuant to title 41, chapter 23 for goods and services that are necessary to carry out board policies and directives.

11. Prepare minutes, reports and records of all board transactions and orders.

12. Prepare a biannual budget.

13. As directed by the board, prepare and submit recommendations for changes to this chapter for consideration by the legislature.

14. Initiate an investigation if evidence appears to demonstrate that a physician may be engaged in unprofessional conduct or may be mentally incompetent or physically unable to safely practice medicine.

15. Issue subpoenas to compel the attendance and testimony of a witness and the production of evidence.

16. As directed by the board, provide assistance to the attorney general in preparing and executing disciplinary orders, rehabilitation orders and notices of hearings.

17. Represent the board with the federal government, other states and jurisdictions of the United States, this state, political subdivisions of this state, the news media and the public.

18. If delegated by the board, dismiss complaints that, after an investigation, demonstrate insufficient evidence that the physician's conduct violated this chapter.

19. If delegated by the board, enter into a stipulated agreement with a licensee for the treatment, rehabilitation and monitoring of the licensee's abuse or misuse of a chemical substance.

20. Review all complaints filed pursuant to section 32-1855. If delegated by the board, the executive director may also dismiss a complaint if the complaint is without merit. The executive director shall not dismiss a complaint if a court has entered a medical malpractice judgment against a physician. The executive director shall submit to the board a report of each complaint the executive director dismisses for its review at its next regular board meeting. The report shall include the complaint number, the name of the physician and the investigation timeline for each dismissed complaint.

21. If delegated by the board, refer complaints for an investigative hearing.

22. If delegated by the board, close complaints resolved through mediation.

23. If delegated by the board, issue letters of concern or orders for nondisciplinary education, or both.

24. If delegated by the board, enter into a consent agreement if there is evidence of danger to the public health and safety.

25. If delegated by the board, grant uncontested requests for cancellation of a license pursuant to section 32-1827.

26. Perform any other duty required by the board.

§ 32-1805 Board fund; disbursements

(L24, Ch. 222, sec. 25. Eff. until 7/1/28)

A. Before the end of the calendar month, pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies received by the board from fees and other monies provided for in section 32-1826 in the state general fund and deposit the remaining eighty-five percent in the board fund. All monies derived from civil penalties collected pursuant to section 32-1855 shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

B. Monies deposited in the board fund shall be subject to section 35-143.01.

§ 32-1805 (Version 2) Board fund; disbursements

(L24, Ch. 222, sec. 26. Eff. 7/1/28)

A. Before the end of the calendar month, pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies received by the board from fees and other monies provided for in section 32-1826 in the state general fund and deposit the remaining ninety percent in the board fund. All monies derived from civil penalties collected pursuant to section 32-1855 shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

B. Monies deposited in the board fund shall be subject to section 35-143.01.

§ 32-1806 Jurisdiction arbitration panel

A. When the board receives a complaint concerning a physician who is also licensed pursuant to chapter 29 of this title, the board shall immediately notify the board of homeopathic and integrated medicine examiners. If the boards disagree and if both boards continue to claim jurisdiction over the dual licensee, an arbitration panel shall decide jurisdiction pursuant to section 32-2907, subsections B, C, D and E.

B. If the licensing boards decide without resorting to arbitration which board or boards shall conduct the investigation, the board or boards conducting the investigation shall transmit all investigation materials, findings and conclusions to the other board with which the physician is licensed. The board or boards shall review this information to determine if disciplinary action shall be taken against the physician.

§ 32-1807 Preceptorship awareness campaign; definitions

A. The board shall develop a preceptorship awareness campaign that educates medical professionals who are licensed pursuant to this chapter on how to become and the benefits of being a medical preceptor for students.

B. For the purposes of this section:

1. "Medical preceptor" means a medical professional who is licensed pursuant to this chapter and who maintains an active practice in this state.

2. "Preceptorship":

(a) Means a mentoring experience in which a medical preceptor provides a program of personalized instruction, training and supervision to a student, which may include educating the student about dispensing drugs and devices, to enable the student to obtain a medical professional degree to become licensed pursuant to this chapter.

(b) Does not include mentoring for medical services that are prescribed in section 36-2301.01, subsection C, paragraph 1.

3. "Student" means an individual who is matriculating at the graduate level at an accredited institution of higher education in this state and who is seeking a medical professional degree to become licensed pursuant to this chapter.

Article 2 Licensing

§ 32-1821 Persons and acts not affected by chapter

This chapter does not prevent:

1. A duly licensed physician and surgeon of any other state, district or territory from meeting a person licensed pursuant to this chapter within this state for consultation or, pursuant to an invitation by a sponsor, visiting this state for the sole purpose of promoting professional education through lectures, clinics or demonstrations as long as the visiting physician does not open an office, designate a place to meet patients or receive calls relating to the practice of medicine outside of the facilities and programs of the sponsor.

2. The practice of any other method, system or science of healing by a person duly licensed pursuant to the laws of this state.

3. The practice by physicians and surgeons discharging their duties while members of the armed forces of the United States or other federal agencies.

4. Any act, task or function performed by a physician assistant or registered nurse practitioner in the proper discharge of that person's duties.

5. A person administering a lawful domestic or family remedy to a member of that person's immediate family.

6. Providing medical assistance in case of an emergency.

7. The emergency harvesting of donor organs.

§ 32-1822 Qualifications of applicant; application; fingerprinting; fees

A. On a form and in a manner prescribed by the board, an applicant for licensure shall submit proof that the applicant:

1. Is the person named on the application and on all supporting documents submitted.

2. Is a citizen of the United States or a resident alien.

3. Is a graduate of a school of osteopathic medicine approved by the American osteopathic association.

4. Has successfully completed an approved internship, the first year of an approved multiple-year residency or a board-approved equivalency.

5. Has passed the approved examinations for licensure within seven years of application or has the board-approved equivalency of practice experience.

6. Has not engaged in any conduct that, if it occurred in this state, would be considered unprofessional conduct or, if the applicant has engaged in unprofessional conduct, is rehabilitated from the underlying conduct.

7. Is physically, mentally and emotionally able to practice medicine, or, if limited, restricted or impaired in the ability to practice medicine, consents to contingent licensure pursuant to subsection E of this section or to entry into a program prescribed in section 32-1861.

8. Has submitted a full set of fingerprints to the board for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

B. An applicant must submit with the application the nonrefundable application fee prescribed in section 32-1826 and pay the prescribed license issuance fee to the board at the time the license is issued.

C. The board or the executive director may require an applicant to submit to a personal interview, a physical examination or a mental evaluation or any combination of these, at the applicant's expense, at a reasonable time and place as prescribed by the board if the board determines that this is necessary to provide the board adequate information regarding the applicant's ability to meet the licensure requirements of this chapter. An interview may include medical knowledge questions and other matters that are relevant to licensure.

D. The board may deny a license for any unprofessional conduct that would constitute grounds for disciplinary action pursuant to this chapter or as determined by a competent domestic or foreign jurisdiction.

E. The board may issue a license that is contingent on the applicant entering into a stipulated order that may include a period of probation or a restriction on the licensee's practice.

F. The executive director may issue licenses to applicants who meet the requirements of this section.

G. A person whose license has been revoked, denied or surrendered in this or any other state may apply for licensure not sooner than five years after the revocation, denial or surrender.

H. A license issued pursuant to this section is valid for the remainder of the calendar year in which it was issued, at which time it is eligible for renewal.

§ 32-1823 Locum tenens registration; application; term; interview; denial of application; discipline

A. A doctor of osteopathy who is licensed to practice osteopathic medicine and surgery by another state may be registered to provide locum tenens medical services to substitute for or temporarily assist a doctor of osteopathy who holds an active license pursuant to this chapter or a doctor of medicine who holds an active license pursuant to chapter 13 of this title under the following conditions:

1. The applicant provides on forms and in a manner prescribed by the board proof that the applicant meets the applicable requirements of section 32-1822.

2. The doctor of medicine or doctor of osteopathy for whom the applicant is substituting or assisting provides to the board a written request for locum tenens registration of the applicant.

B. On completion of the registration form prescribed by the board and payment of the required fees, the executive director may register a qualifying doctor of osteopathy by locum tenens registration and authorize the doctor to provide locum tenens services.

C. Locum tenens registration granted pursuant to this section is valid for ninety days and may be extended once for an additional ninety days on written request by the doctor of medicine or doctor of osteopathy who originally initiated the request for this registration, stating the reason extension is necessary, and by submitting the appropriate fees and other documents requested by the executive director.

D. The board or the executive director may require an applicant to submit to a personal interview to provide the board with adequate information regarding the applicant's ability to practice under locum tenens registration. The applicant is responsible for all costs to attend the interview.

E. The board may deny the application for a locum tenens registration for any unprofessional conduct that would constitute grounds for disciplinary action pursuant to this chapter or as determined by a competent domestic or foreign jurisdiction.

F. A locum tenens registrant is subject to the disciplinary provisions pursuant to this chapter.

§ 32-1824 Expedited licensure; medical licensure compact; fingerprinting

Beginning September 1, 2017, applicants for expedited licensure pursuant to section 32-3241 shall submit a full set of fingerprints to the board for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation. Communication between the board and the interstate medical licensure compact commission regarding verification of physician eligibility for licensure under the medical licensure compact may not include any information received from the federal bureau of investigation relating to a state and federal criminal records check performed for the purposes of section 32-3241, section 5, subsection B, paragraph 2.

§ 32-1825 Renewal of licenses; continuing medical education; failure to renew; penalty; reinstatement; waiver of continuing medical education

A. Except as provided in section 32-4301, each licensee shall renew the license every other year on or before January 1 on an application form approved by the board. At least sixty days before that renewal date, the executive director shall notify each licensee of this requirement. The executive director shall send this notification by mail to the licensee at the licensee's address.

B. With the application prescribed pursuant to subsection A of this section, the licensee shall furnish to the executive director a statement of having attended before the license renewal date educational programs, approved by the board, totaling at least forty clock hours during the two preceding years, and a statement that the licensee reported any conduct that may constitute unprofessional conduct in this state or elsewhere. The application must also include the prescribed renewal fee. The executive director shall then issue a renewal receipt to the licensee. The board may require a licensee to submit documentation of continuing medical education.

C. The board shall not renew the license of a licensee who does not fully document the licensee's compliance with the continuing education requirements of subsection B of this section unless that person receives a waiver of those requirements. The board may waive the continuing education requirements of subsection B of this section for a particular period if it is satisfied that the licensee's noncompliance was due to the licensee's disability, military service or absence from the United States or to other circumstances beyond the control of the licensee. If a licensee fails to attend the required number of clock hours for reasons other than those specified in this subsection, the board may grant an extension until May 1 of that year for the licensee to comply.

D. Unless the board grants an extension pursuant to subsection C of this section, a licensee who fails to renew the license within thirty days after the renewal date shall pay a penalty fee and a reimbursement fee in addition to the prescribed renewal fee. Except as provided in sections 32-3202 and 32-4301, a license expires if a person does not renew the license within four months after the renewal date. A person who practices osteopathic medicine after that time is in violation of this chapter. A person whose license expires may reapply for a license pursuant to this chapter.

§ 32-1826 Fees; penalty

A. The board shall establish fees of not to exceed the following:

1. For an application to practice osteopathic medicine, four hundred dollars.

2. For issuance of a license, two hundred dollars, prorated by each month remaining in the calendar year of issuance.

3. For biennial renewal of a license, eight hundred dollars.

4. For locum tenens registration or extension, three hundred dollars.

5. For issuance of a duplicate license, one hundred dollars.

6. For an annual training permit for an approved postgraduate training program or short-term residency program, one hundred dollars.

7. For an annual teaching license issued pursuant to section 32-1831, four hundred dollars.

8. For a five-day educational teaching permit at an approved school of medicine or at an approved teaching hospital's accredited graduate medical education program, two hundred dollars.

9. For the sale of a computerized format of the board's licensee directory that does not require programming, one hundred dollars.

10. For initial and annual registration to dispense drugs and devices, two hundred fifty dollars, prorated by each month remaining in the calendar year of issuance.

B. The board shall charge a one hundred fifty dollar penalty fee for late renewal of a license and a twenty-five dollar reimbursement fee to cover the board's expenses in collecting late renewal fees. The board shall deposit this fee in the board fund.

C. The board may charge additional fees for services the board determines are necessary and appropriate to carry out this chapter. These fees shall not exceed the actual cost of providing the services.

§ 32-1827 Cancellation of a license; requirements

The board shall cancel a license at the licensee's request if the licensee is not the subject of a board investigation or disciplinary proceeding.

§ 32-1828 Education teaching permits

A. The dean of a school of osteopathic medicine approved by the American osteopathic association or the chairman of a teaching hospital's accredited graduate medical education program may invite a doctor of osteopathy who is not licensed in this state to demonstrate and perform medical procedures and surgical techniques for the sole purpose of promoting professional education for students, interns, residents, fellows and doctors of osteopathy in this state.

B. The chairman or dean of the inviting institution shall provide to the board evidence that an applicant for an educational permit has malpractice insurance in an amount that meets the requirements of that institution and that the applicant accepts all responsibility and liability for the procedures the applicant performs within the scope of the applicant's permit.

C. In a letter to the board, the chairman or dean of the inviting institution shall outline the procedures and techniques that the doctor of medicine will perform or demonstrate and the dates that this activity will occur. The letter shall also include a summary of the doctor of osteopathy's education and professional background and shall be accompanied by the fee required pursuant to this chapter.

D. The inviting institutions shall submit the fees and documents required pursuant to this section no later than two weeks before the scheduled activity.

E. The board through its staff shall issue an educational teaching permit for not more than five days for each approved activity.

§ 32-1829 Training permits; issuance of permits

A. The board may grant a one-year renewable training permit to a person who is participating in a teaching hospital's accredited internship, residency or clinical fellowship training program to allow that person to practice medicine only in the supervised setting of that program. Before the board issues the permit, the person shall:

1. Submit an application on a form and in a manner prescribed by the board and proof that the applicant:

(a) Is the person named on the application and on all supporting documentation.

(b) Is a citizen of the United States or a resident alien.

(c) Is a graduate of a school approved by the American osteopathic association.

(d) Participated in postgraduate training, if any.

(e) Has passed approved examinations appropriate to the applicant's level of education and training.

(f) Has not engaged in any conduct that, if it occurred in this state, would be considered unprofessional conduct or, if the applicant has engaged in unprofessional conduct, is rehabilitated from the underlying conduct.

(g) Is physically, mentally and emotionally able to practice medicine, or, if limited, restricted or impaired in the ability to practice medicine, consents to a contingent permit or to entry into a program described in section 32-1861.

2. Pay the nonrefundable application fee prescribed by the board.

B. If a permittee who is participating in a teaching hospital's accredited internship, residency or clinical fellowship training program must repeat or make up time in the program due to resident progression or for other reasons, the board may grant that person an extension of the training permit if requested to do so by the program's director of medical education or a person who holds an equivalent position. The extended permit limits the permittee to practicing only in the supervised setting of that program for a period of time sufficient to repeat or make up the training.

C. The board may grant a training permit to a person who is not licensed in this state and who is participating in a short-term training program of four months or less for continuing medical education conducted in an approved school of osteopathic medicine or a hospital that has an accredited hospital internship, residency or clinical fellowship training program in this state. Before the board issues the permit, the person shall:

1. Submit an application on a form and in a manner prescribed by the board and proof that the applicant meets the requirements prescribed in subsection A, paragraph 1 of this section.

2. Pay the nonrefundable application fee prescribed by the board.

D. A permittee is subject to the disciplinary provisions of this chapter.

E. The executive director may issue a permit to an applicant who meets the requirements of this chapter.

F. If a permit is not issued pursuant to subsection E of this section, the board may issue a permit or may:

1. Issue a permit that is contingent on the applicant entering into a stipulated agreement that may include a period of probation or a restriction on the permittee's practice.

2. Deny a permit to an applicant who does not meet the requirements of this chapter.

§ 32-1829.01 Osteopathic graduate transitional training permit; requirements; definitions

A. The board or, if delegated, the executive director of the board shall grant a one-year transitional training permit to a graduate of an osteopathic school of medicine who is not otherwise eligible to apply for a license to practice or a training permit pursuant to section 32-1829 or 32-1830 in this state if the applicant meets both of the following conditions:

1. Within a two-year period immediately preceding initial application for a transitional training permit, was either:

(a) Qualified to submit, and submitted, a valid application to an accredited internship or residency program but was not selected for a position.

(b) Selected for a position described in subdivision (a) of this paragraph but ended participation in the program before completion for a reason that would not be considered grounds for disciplinary action pursuant to section 32-1855.

2. Successfully completed steps one and two of the United States medical licensing examination or equivalent steps of the comprehensive osteopathic medical licensing examination.

B. The transitional training permit may be renewed for two additional one-year periods if the permittee, in the year preceding an application for renewal, submits complete and valid applications to at least three accredited primary care internship or residency programs and is not selected for an internship or residency position. The permittee shall provide the board with written documentation of the internship or residency program applications and the nonselections. A permittee may not hold a permit for an aggregate time period of more than thirty-six months.

C. The transitional training permit limits the permittee to function only under the supervision of a qualified physician within the setting of an eligible entity, which includes the following if located in this state:

1. A hospital or behavioral health facility that is licensed pursuant to title 36, chapter 4.

2. A patient care facility operated by or for any federally recognized American Indian tribe, the Indian health service, the United States veterans administration, a prison or a school or university.

3. A community health center or a federally qualified health center.

4. A private office or clinic where a supervising qualified physician practices and that is not a pain management clinic as defined in section 36-448.01.

D. An eligible entity contracting with or employing a permittee shall:

1. Provide to the permittee, in collaboration with the supervising qualified physician, ongoing clinical training related to the services that may be delegated to the permittee by the supervising qualified physician.

2. Be responsible, along with the supervising qualified physician, for all aspects of the performance of a permittee.

3. Ensure that the health care tasks performed by a permittee are within the permittee's scope of medical training, experience and competence and have been properly delegated and supervised by a qualified physician.

4. Ensure that during the permittee's first six months of full-time practice, all clinical encounters performed by the permittee are under the direct supervision of the supervising qualified physician. Subsequent encounters performed by the permittee after the initial six-month period may be under indirect supervision with direct supervision immediately available from the supervising qualified physician.

5. Ensure that all qualified physician supervision is documented.

6. Ensure that in all clinical or other patient encounters the permittee is clearly identified as a medical graduate in training.

7. Define the employment or contractual relationship with the permittee, including terms of compensation and benefits, billing and reimbursement and general and professional liability coverage.

8. Establish and document a process for evaluating the permittee's performance that includes a review by the supervising qualified physician of all medical records related to the clinical encounters performed by the permittee.

E. The supervising qualified physician may delegate to a permittee the performance of health care tasks that are of a nature typically delegated in an accredited internship or residency program, including the ability to provide delegated telehealth services that are of a similar nature, if all other conditions prescribed in this section are met.

F. Before employing or contracting with a permittee, an eligible entity shall notify the department of health services on a form prescribed by the department, or on an equivalent form from the entity, of all the following information:

1. The types and extent of medical training the entity plans to provide to the permittee.

2. The names of the qualified physicians who will supervise the permittee and the types of health care tasks that may be delegated to the permittee by those supervising qualified physicians.

G. An eligible entity shall post on its public website and submit to the department an annual report that includes all of the following:

1. The number of permittees and supervising qualified physicians employed by or contracted with the entity.

2. The length of time each permittee and supervising qualified physician has been employed by or contracted with the entity.

3. The total number of hours of medical education provided to each permittee.

4. The total number of hours of clinical care provided by each permittee.

5. The number of permittees who obtained a match with an accredited internship or residency program.

H. Before supervising a permittee, a qualified physician shall notify the board in writing of the qualified physician's agreement to serve as a supervising qualified physician. The notification shall include the name of the permittee and the name and location of the eligible entity at which the supervision will occur.

I. Before the board issues or renews a training permit under this section, the applicant or renewing permittee shall comply with the applicable registration requirements of this article and pay the fee, which shall be the same as the fee prescribed for an approved internship pursuant to section 32-1826.

J. This section does not require any eligible entity or qualified physician to establish a program to employ or contract with permittees as described in this section or require any qualified physician to assume supervision responsibilities for a permittee.

K. A permittee under this section:

1. Is subject to the disciplinary regulation of article 3 of this chapter.

2. Per one-year period, shall participate in at least sixty hours of continuing medical education programs approved by the board.

3. Shall notify the board on the permittee's acceptance to an accredited internship or residency program.

L. A supervising qualified physician under this section:

1. Is responsible for all aspects of a permittee's performance, whether or not the supervising qualified physician employs the permittee.

2. Is responsible for supervising the permittee and ensuring that the health care tasks performed by the permittee are within the permittee's scope of medical training and experience, are appropriate to the permittee's level of competence and are properly delegated by the supervising qualified physician.

3. May allow a permittee to administer or dispense drugs under the conditions of section 32-1871 if the controlled substance permit under which the drugs are dispensed is either the supervising qualified physician's or the eligible entity's permit.

4. May serve as a supervising qualified physician for only one permittee at any one time.

5. Shall notify the board, the eligible entity and the permittee in writing if the permittee exceeds the scope of the delegated health care tasks to allow the board to investigate.

M. For the purposes of this section:

1. "Direct supervision" means the supervising qualified physician is physically present with the permittee and patient.

2. "Indirect supervision with direct supervision immediately available" means the supervising qualified physician is physically present within the hospital or other eligible entity site of patient care and is immediately available to provide direct supervision of the permittee.

3. "Permittee" means a person who holds a transitional training permit issued pursuant to this section.

4. "Qualified physician" means a physician who possesses a full and unrestricted license issued pursuant to this chapter to engage in the practice of medicine in this state and who is not currently under board discipline.

§ 32-1830 Training permits; approved schools

The executive director may grant a one-year training permit to a person who:

1. Participates in a program at an approved school of medicine or a hospital that has an approved hospital internship, residency or clinical fellowship training program if the purpose of the program is to exchange technical and educational information.

2. Pays the fee as prescribed by the board.

3. Submits a written statement from the dean of the approved school of osteopathic medicine or from the chairman of a teaching hospital's accredited graduate medical education program that:

(a) Includes a request for the permit and describes the purpose of the exchange program.

(b) Specifies that the host institution shall provide liability coverage.

(c) Provides proof that a doctor of medicine will serve as the preceptor of the host institution and provide appropriate supervision of the participant.

(d) States that the host institution has advised the participant that the participant may serve as a member of an organized medical team but shall not practice medicine independently and that this training does not accrue toward postgraduate training requirements for licensure.

§ 32-1831 Teaching licenses; definitions

A. A doctor of osteopathic medicine who is not licensed in this state may be employed as a full-time faculty member by a school of osteopathic medicine in this state approved by the American osteopathic association or a teaching hospital's accredited graduate medical education program in this state to provide professional education through lectures, clinics or demonstrations if the doctor holds a teaching license issued pursuant to this section.

B. An applicant for a teaching license shall:

1. Submit a completed application as prescribed by the board.

2. Pay all fees prescribed by the board. Application fees are nonrefundable.

3. Meet the requirements of section 32-1822.

C. A person who is licensed pursuant to this section shall not open an office or designate a place to meet patients or receive calls relating to the practice of osteopathic medicine in this state outside of the facilities and programs of the approved school or teaching hospital.

D. A person who is licensed pursuant to this section shall comply with the requirements of this chapter, with the exception of those that relate to licensing examinations.

E. The board or the executive director may require an applicant to submit to a personal interview, a physical examination or a mental health evaluation, or any combination of these, at the applicant's expense. The board shall prescribe a reasonable time and place if the board determines that this is necessary to provide the board with adequate information regarding the applicant's ability to meet the licensure requirements of this chapter. The interview may include questions regarding medical knowledge and other matters relevant to licensure.

F. The board may deny a license for any unprofessional conduct that would constitute grounds for disciplinary action pursuant to this chapter or as determined by a competent domestic or foreign jurisdiction.

G. A person who is licensed pursuant to this section is subject to the disciplinary provisions pursuant to this chapter.

H. A license issued pursuant to this section is valid for two years. A doctor of osteopathic medicine may apply for licensure once every two years, subject to the continuing medical education requirements prescribed in section 32-1825.

I. For the purposes of this section:

1. "Accredited" means that the school or teaching hospital has an internship, fellowship or residency training program that is accredited by the accreditation council for graduate medical education, the American osteopathic association or a similar body that is approved by the board.

2. "Full-time faculty member" means a full-time faculty member as prescribed by the school of osteopathic medicine or the teaching hospital.

§ 32-1832 Retired license; waiver of fees; reinstatement; limited license; volunteer work

A. The board shall waive a physician's biennial renewal fee if the physician has paid all past fees, presents an affidavit to the board stating that the physician has permanently retired from the practice of osteopathic medicine and does not have any pending complaints or open disciplinary matters before the board.

B. A retired physician whose biennial fee has been waived by the board pursuant to this section is not required to comply with any continuing medical education requirements of this chapter.

C. After retired status is granted by the board, a retired physician shall submit a renewal of retired status every two years on a form and in a manner prescribed by the board.

D. Except as provided in subsection F of this section, a retired physician who has had the biennial renewal fee waived by the board pursuant to this section and who engages in the practice of osteopathic medicine is subject to the same penalties that are imposed pursuant to this chapter on a person who practices medicine without a license or without being exempt from licensure.

E. The board may reinstate a retired physician to active status on payment of the biennial renewal fee and presentation of evidence satisfactory to the board that the physician meets the qualifications prescribed pursuant to section 32-1822. The board may deny the request for reinstatement, place the licensee on probation or issue a limited license that requires general or direct supervision by another licensed doctor of osteopathy for not more than one year.

F. A retired physician who has had the biennial renewal fee waived by the board pursuant to this section may perform volunteer work of not more than ten hours each week and may teach or provide instruction at an approved school of osteopathic medicine.

§ 32-1833 Pro bono registration

A. The board may issue a pro bono registration to allow a doctor of osteopathy who is not a licensee to practice in this state for a total of sixty days each calendar year if the doctor meets all of the following requirements:

1. Holds an active and unrestricted license to practice medicine in a state, territory or possession of the United States.

2. Has never had a license revoked or suspended by a health profession regulatory board of another jurisdiction.

3. Is not the subject of an unresolved complaint.

4. Applies for registration on an annual basis as prescribed by the board.

5. Agrees to render all medical services without accepting a fee or salary or performs only initial or follow-up examinations at no cost to the patient and the patient's family through a charitable organization.

B. The sixty days of practice prescribed pursuant to subsection A of this section may be performed consecutively or cumulatively during each calendar year.

C. For the purpose of meeting the requirements of subsection A of this section, an applicant under this section shall provide the board the name of each state in which the person is licensed or has held a license. The board shall verify with the applicable regulatory board of each state that the applicant is licensed or has held a license, has never had a license revoked or suspended and is not the subject of an unresolved complaint. The board may accept the verification of the information required by subsection A, paragraphs 1, 2 and 3 of this section from each of the other state's regulatory boards either electronically or by hard copy.

§ 32-1834 Temporary licensure; requirements; fee

A. Beginning July 1, 2017, the board may issue a temporary license, which may not be renewed or extended, to allow a physician who is not a licensee to practice in this state for a total of up to two hundred fifty consecutive days if the physician meets all of the following requirements:

1. Holds an active and unrestricted license to practice medicine in a state, territory or possession of the United States.

2. Has never had a license revoked or suspended or surrendered a license for disciplinary reasons.

3. Is not the subject of an unresolved complaint.

4. Has applied for a license pursuant to section 32-1822.

5. Has paid any applicable fees.

B. The physician shall submit to the board a notarized affidavit attesting that the physician meets the requirements of subsection A, paragraphs 1, 2 and 3 of this section. The physician shall notify the board immediately if any circumstance specified in subsection A, paragraphs 1, 2 and 3 of this section changes during the application period for a temporary license or while holding a temporary license, at which time the board may deny or revoke the temporary license.

C. The board shall approve or deny an application under this section within thirty days after an applicant files a complete application. The approval of a temporary license pursuant to this section allows the physician to practice in this state without restriction.

D. If granted, the physician's temporary license expires the earlier of two hundred fifty days after the date the temporary license is granted or on approval or denial of the physician's license application submitted pursuant to section 32-1822.

E. For the purpose of meeting the requirements of subsection A of this section, an applicant shall provide the board the name of each state, territory or possession of the United States in which the person is licensed or has held a license and the board shall verify with the applicable regulatory board that the applicant holds an active and unrestricted license to practice medicine, has never had a license revoked or suspended or surrendered a license for disciplinary reasons and is not the subject of an unresolved complaint. The board may accept the verification of this information from each other regulatory board verbally, which shall be followed by either an electronic or hard copy before the physician's permanent license is granted. If the board is unable to verify the information within the initial thirty days as required by subsection C of this section, the board may extend the time frame by an additional thirty days to receive the necessary verification.

F. The board may establish a fee in rule for temporary licensure under this section.

§ 32-1835 Specialty certification; prohibited requirement for licensure; definition

A. The board may not require an applicant for licensure pursuant to this article to hold or maintain a specialty certification as a condition of licensure in this state. This subsection does not prohibit the board from considering an applicant's specialty certification as a factor in whether to grant a license to the applicant.

B. For the purposes of this section, "specialty certification" means certification by a board that specializes in one particular area of medicine and that may require examinations in addition to those required by this state to be licensed to practice medicine.

Article 3 Regulation

§ 32-1851 Prohibited acts

The following acts are prohibited:

1. Practicing medicine and surgery as an osteopathic physician and surgeon without holding a license issued by the board under the provisions of this chapter.

2. Misusing the designation "D.O." in a way that leads the public to believe that a person is licensed to practice medicine in this state.

3. Using the designation "doctor of osteopathy", "doctor of osteopathic medicine", "osteopathic physician", "osteopathic surgeon", "osteopathic physician and surgeon" or any combination of these terms unless the designation additionally contains the description of another branch of the healing arts.

4. Using any other words, initials or symbols or a combination of these that leads the public to believe a person is licensed to practice medicine in this state.

§ 32-1852 Rights and duties of osteopathic physicians and surgeons; scope of practice

A person holding a license under this chapter to practice medicine and surgery as an osteopathic physician and surgeon shall be subject to all state and local laws and regulations pertaining to public health. In diagnosticating, prognosticating and treating any human ills he shall be subjected to all the same duties and obligations and authorized to exercise all the same rights and privileges possessed by physicians and surgeons of other complete schools of medicine in the practice of their profession.

§ 32-1853 Use of title

A person licensed under this chapter shall use the title "osteopathic physician and surgeon", "osteopathic physician" or "doctor of osteopathy" or affix the initials "D.O." after the licensee's name.

§ 32-1853.01 Use of title by a medical assistant

It is unlawful for a person to use the title "medical assistant" or a related abbreviation unless the person is working as a medical assistant under the supervision of a doctor of osteopathic medicine pursuant to rules adopted by the board or possesses written verification of successful completion of a training program provided pursuant to rules adopted by the board.

§ 32-1854 Definition of unprofessional conduct

For the purposes of this chapter, "unprofessional conduct" includes the following acts, whether occurring in this state or elsewhere:

1. Knowingly betraying a professional secret or wilfully violating a privileged communication except as either of these may otherwise be required by law. This paragraph does not prevent members of the board from exchanging information with the licensing and disciplinary boards of other states, territories or districts of the United States or with foreign countries or with osteopathic medical organizations located in this state or in any state, district or territory of this country or in any foreign country.

2. Committing a felony or a misdemeanor involving moral turpitude. In either case conviction by any court of competent jurisdiction is conclusive evidence of the commission of the offense.

3. Practicing medicine while under the influence of alcohol, a dangerous drug as defined in section 13-3401, narcotic or hypnotic drugs or any substance that impairs or may impair the licensee's ability to safely and skillfully practice medicine.

4. Being diagnosed by a physician licensed under this chapter or chapter 13 of this title or a psychologist licensed under chapter 19.1 of this title as excessively or illegally using alcohol or a controlled substance.

5. Prescribing, dispensing or administering controlled substances or prescription-only drugs for other than accepted therapeutic purposes.

6. Engaging in the practice of medicine in a manner that harms or may harm a patient or that the board determines falls below the community standard.

7. Impersonating another physician.

8. Acting or assuming to act as a member of the board if this is not true.

9. Procuring, renewing or attempting to procure or renew a license to practice osteopathic medicine by fraud or misrepresentation.

10. Having professional connection with or lending one's name to an illegal practitioner of osteopathic medicine or any of the other healing arts.

11. Representing that a manifestly incurable disease, injury, ailment or infirmity can be permanently cured or that a curable disease, injury, ailment or infirmity can be cured within a stated time if this is not true.

12. Failing to reasonably disclose and inform the patient or the patient's representative of the method, device or instrumentality the licensee uses to treat the patient's disease, injury, ailment or infirmity.

13. Refusing to divulge to the board on demand the means, method, device or instrumentality used to treat a disease, injury, ailment or infirmity.

14. Charging a fee for services not rendered or dividing a professional fee for patient referrals. This paragraph does not apply to payments from a medical researcher to a physician in connection with identifying and monitoring patients for clinical trial regulated by the United States food and drug administration.

15. Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of medicine or when applying for or renewing privileges at a health care institution or a health care program.

16. Advertising in a false, deceptive or misleading manner.

17. Representing or claiming to be an osteopathic medical specialist if the physician has not satisfied the applicable requirements of this chapter or board rules.

18. Having a license denied or disciplinary action taken against a license by any other state, territory, district or country, unless it can be shown that this occurred for reasons that did not relate to the person's ability to safely and skillfully practice osteopathic medicine or to any act of unprofessional conduct as provided in this section.

19. Committing any conduct or practice contrary to recognized standards of ethics of the osteopathic medical profession.

20. Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any of the provisions of this chapter.

21. Failing or refusing to establish and maintain adequate records on a patient as follows:

(a) If the patient is an adult, for at least six years after the last date the licensee provided the patient with medical or health care services.

(b) If the patient is a child, either for at least three years after the child's eighteenth birthday or for at least six years after the last date the licensee provided that patient with medical or health care services, whichever date occurs later.

22. Using controlled substances or prescription-only drugs unless they are provided by a medical practitioner, as defined in section 32-1901, as part of a lawful course of treatment.

23. Prescribing controlled substances to members of one's immediate family unless there is no other physician available within fifty miles to treat a member of the family and an emergency exists.

24. Committing nontherapeutic use of injectable amphetamines.

25. Violating a formal order, probation or a stipulation issued by the board under this chapter.

26. Charging or collecting an inappropriate fee. This paragraph does not apply to a fee that is fixed in a written contract between the physician and the patient and entered into before treatment begins.

27. Using experimental forms of therapy without adequate informed patient consent or without conforming to generally accepted criteria and complying with federal and state statutes and regulations governing experimental therapies.

28. Failing to make patient medical records in the physician's possession promptly available to a physician assistant, a nurse practitioner, a person licensed pursuant to this chapter or a podiatrist, chiropractor, naturopathic physician, physician or homeopathic physician licensed under chapter 7, 8, 13, 14 or 29 of this title on receipt of proper authorization to do so from the patient, a minor patient's parent, the patient's legal guardian or the patient's authorized representative or failing to comply with title 12, chapter 13, article 7.1.

29. Failing to allow properly authorized board personnel to have, on presentation of a subpoena, access to any documents, reports or records that are maintained by the physician and that relate to the physician's medical practice or medically related activities pursuant to section 32-1855.01.

30. Signing a blank, undated or predated prescription form.

31. Obtaining a fee by fraud, deceit or misrepresentation.

32. Failing to report to the board an osteopathic physician and surgeon who is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of medicine.

33. Referring a patient to a diagnostic or treatment facility or prescribing goods and services without disclosing that the physician has a direct pecuniary interest in the facility, goods or services to which the patient has been referred or prescribed. This paragraph does not apply to a referral by one physician to another physician within a group of physicians practicing together.

34. Exhibiting a lack of or inappropriate direction, collaboration or supervision of a licensed, certified or registered health care provider or office personnel employed by or assigned to the physician in the medical care of patients.

35. Violating a federal law, a state law or a rule applicable to the practice of medicine.

36. Prescribing or dispensing controlled substances or prescription-only medications without establishing and maintaining adequate patient records.

37. Dispensing a schedule II controlled substance that is an opioid, except as provided in sections 32-1871 and 32-3248.03.

38. Failing to dispense drugs and devices in compliance with article 4 of this chapter.

39. Committing any conduct or practice that endangers a patient's or the public's health or may reasonably be expected to do so.

40. Committing any conduct or practice that impairs the licensee's ability to safely and skillfully practice medicine or that may reasonably be expected to do so.

41. With the exception of heavy metal poisoning, using chelation therapy in the treatment of arteriosclerosis or as any other form of therapy without adequate informed patient consent and without conforming to generally accepted experimental criteria, including protocols, detailed records, periodic analysis of results and periodic review by a medical peer review committee.

42. Prescribing, dispensing or administering anabolic-androgenic steroids to a person for other than therapeutic purposes.

43. Engaging in sexual conduct with a current patient or with a former patient within six months after the last medical consultation unless the patient was the licensee's spouse at the time of the contact or, immediately preceding the physician-patient relationship, was in a dating or engagement relationship with the licensee. For the purposes of this paragraph, "sexual conduct" includes:

(a) Engaging in or soliciting sexual relationships, whether consensual or nonconsensual.

(b) Making sexual advances, requesting sexual favors or engaging in any other verbal conduct or physical conduct of a sexual nature.

44. Committing conduct that is in violation of section 36-2302.

45. Committing conduct that the board determines constitutes gross negligence, repeated negligence or negligence that results in harm or death of a patient.

46. Committing conduct in the practice of medicine that evidences unfitness to practice medicine.

47. Engaging in disruptive or abusive behavior in a professional setting.

48. Failing to disclose to a patient that the licensee has a direct financial interest in a prescribed treatment, good or service if the treatment, good or service is available on a competitive basis. This paragraph does not apply to a referral by one licensee to another licensee within a group of licensees who practice together. A licensee meets the disclosure requirements of this paragraph if both of the following are true:

(a) The licensee makes the disclosure on a form prescribed by the board.

(b) The patient or the patient's guardian or parent acknowledges by signing the form that the licensee has disclosed the licensee's direct financial interest.

49. Prescribing, dispensing or furnishing a prescription medication or a prescription-only device to a person if the licensee has not conducted a physical or mental health status examination of that person or has not previously established a physician-patient relationship. The physical or mental health status examination may be conducted through telehealth as defined in section 36-3601 with a clinical evaluation that is appropriate for the patient and the condition with which the patient presents, unless the examination is for the purpose of obtaining a written certification from the physician for the purposes of title 36, chapter 28.1. This paragraph does not apply to:

(a) Emergencies.

(b) A licensee who provides patient care on behalf of the patient's regular treating licensed health care professional or provides a consultation requested by the patient's regular treating licensed health care professional.

(c) Prescriptions written or antimicrobials dispensed to a contact as defined in section 36-661 who is believed to have had significant exposure risk as defined in section 36-661 with another person who has been diagnosed with a communicable disease as defined in section 36-661 by the prescribing or dispensing physician.

(d) Prescriptions for epinephrine delivery systems that are written or dispensed for a school district or charter school to be stocked for emergency use pursuant to section 15-157 or for an authorized entity to be stocked pursuant to section 36-2226.01.

(e) Prescriptions for glucagon written or dispensed for a school district or charter school to be stocked for emergency use pursuant to section 15-344.01.

(f) Prescriptions written by a licensee through a telehealth program that is covered by the policies and procedures adopted by the administrator of a hospital or outpatient treatment center.

(g) Prescriptions for naloxone hydrochloride or any other opioid antagonist approved by the United States food and drug administration that are written or dispensed for use pursuant to section 36-2228 or 36-2266.

50. If a licensee provides medical care by computer, failing to disclose the licensee's license number and the board's address and telephone number.

§ 32-1855 Disciplinary action; duty to report; hearing; notice; independent medical examinations; surrender of license

A. Except as otherwise provided in this subsection, the board on its own motion may investigate any information that appears to show that an osteopathic physician and surgeon is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of medicine. A physician who conducts an independent medical examination pursuant to an order by a court or pursuant to section 23-1026 is not subject to a complaint for unprofessional conduct unless, in the case of a court-ordered examination, the complaint is made or referred by a court to the board, or in the case of an examination conducted pursuant to section 23-1026, the complaint alleges unprofessional conduct based on some act other than a disagreement with the findings and opinions expressed by the physician as a result of the examination. Any osteopathic physician or surgeon or the Arizona osteopathic medical association or any health care institution as defined in section 36-401 shall, and any other person may, report to the board any information the physician or surgeon, association, health care institution or other person may have that appears to show that an osteopathic physician and surgeon is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of medicine. The board shall notify the doctor about whom information has been received as to the content of the information as soon as reasonable after receiving the information. Any person who reports or provides information to the board in good faith is not subject to civil damages as a result of that action. If requested the board shall not disclose the informant's name unless it is essential to the disciplinary proceedings conducted pursuant to this section. It is an act of unprofessional conduct for any osteopathic physician or surgeon to fail to report as required by this section. The board shall report any health care institution that fails to report as required by this section to that institution's licensing agency. A person who reports information in good faith pursuant to this subsection is not subject to civil liability. For the purposes of this subsection, "independent medical examination" means a professional analysis of medical status that is based on a person's past and present physical, medical and psychiatric history and conducted by a licensee or group of licensees on a contract basis for a court or for a workers' compensation carrier, self-insured employer or claims processing representative if the examination was conducted pursuant to section 23-1026.

B. The board may require a physician under investigation pursuant to subsection A of this section to be interviewed by the board or its representatives. The board or the executive director may require a licensee who is under investigation pursuant to subsection A of this section to undergo at the licensee's expense any combination of medical, physical or mental examinations the board finds necessary to determine the physician's competence.

C. If the board finds, based on the information it received under subsection A or B of this section, that the public health, safety or welfare imperatively requires emergency action and incorporates a finding to that effect in its order, the board may order a summary suspension of a license pending proceedings for revocation or other action. If an order of summary suspension is issued, the licensee shall also be served with a written notice of complaint and formal hearing setting forth the charges made against the licensee and is entitled to a formal hearing on the charges pursuant to title 41, chapter 6, article 10. Formal proceedings shall be promptly instituted and determined.

D. If, after completing its investigation, the board finds that the information provided pursuant to this section is not of sufficient seriousness to merit direct action against the physician's license, it may take any combination of the following actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. Issue a letter of concern.

3. In addition to the requirements of section 32-1825, require continuing medical education on subjects and within a time period determined by the board.

4. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

E. If, in the opinion of the board, it appears that information provided pursuant to this section is or may be true, the board may request an investigative hearing with the physician concerned. At an investigative hearing the board may receive and consider sworn statements of persons who may be called as witnesses and other pertinent documents. Legal counsel may be present and participate in the meeting. If the physician refuses the request or if the physician accepts the request and the results of the investigative hearing indicate suspension of more than twelve months or revocation of the license may be in order, a complaint shall be issued and an administrative hearing shall be held pursuant to title 41, chapter 6, article 10. After the investigative hearing and a mental, physical or medical competence examination as the board deems necessary, the board may take any of the following actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. Issue a letter of concern.

3. In addition to the requirements of section 32-1825, require continuing medical education on subjects and within a time period determined by the board.

4. Issue a decree of censure, which constitutes an official action against a physician's license.

5. Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the physician concerned. Any costs incidental to the terms of probation are at the physician's own expense.

6. Restrict or limit the physician's practice in a manner and for a time determined by the board.

7. Suspend the physician's license for not more than twelve months.

8. Impose a civil penalty of not to exceed five hundred dollars for each violation of this chapter.

9. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

10. Issue an administrative warning.

F. If, in the opinion of the board, it appears the charge is of such magnitude as to warrant suspension for more than twelve months or revocation of the license, the board shall immediately initiate formal revocation or suspension proceedings pursuant to title 41, chapter 6, article 10. The board shall notify a licensee of a complaint and hearing by certified mail addressed to the licensee's last known address on record in the board's files.

G. A licensee shall respond in writing to the board within thirty days after the notice of formal or administrative hearing is served. A licensee who fails to answer the charges in a complaint and notice of formal or administrative hearing issued pursuant to this article and title 41, chapter 6, article 10 is deemed to admit the acts charged in the complaint, and the board may revoke or suspend the license without a hearing.

H. A physician who, after an investigative or administrative hearing, is found to be guilty of unprofessional conduct or is found to be mentally or physically unable safely to engage in the practice of osteopathic medicine is subject to any combination of censure, probation, suspension of license, revocation of license, an order to return patient fees, imposition of hearing costs, imposition of a civil penalty of not to exceed five hundred dollars for each violation for a period of time, or permanently, and under conditions the board deems appropriate for the protection of the public health and safety and just in the circumstances. The board may charge the costs of an investigative or administrative hearing to the licensee if pursuant to that hearing the board determines that the licensee violated this chapter or board rules.

I. If the board acts to modify a physician's prescription writing privileges, it shall immediately notify the state board of pharmacy and the federal drug enforcement administration in the United States department of justice of the modification.

J. The board shall report allegations of evidence of criminal wrongdoing to the appropriate criminal justice agency.

K. Notice of a complaint and administrative hearing is effective when a true copy of the notice is sent by certified mail to the licensee's last known address of record in the board's files and is complete on the date of its deposit in the mail. The board shall hold an administrative hearing within one hundred twenty days after that date.

L. The board may accept the surrender of an active license from a licensee who admits in writing to having committed an act of unprofessional conduct, to having violated this chapter or board rules or to being unable to safely practice medicine.

§ 32-1855.01 Right to examine and copy evidence; summoning witnesses and documents; taking testimony; right to counsel; court aid; process

A. Pursuant to an investigation conducted under this chapter, the board and its authorized agents and employees may examine any documents, reports, records or other physical evidence of any person being investigated, as well as the reports, records and other documents maintained by and in possession of any hospital, clinic, physician's office, laboratory, pharmacy or other public or private agency and health care institution as defined in section 36-401, that relate to medical competence, unprofessional conduct or the licensee's mental or physical ability to safely practice medicine. The investigators may copy evidence on site and at the licensee's expense. Failing to permit access on request is unprofessional conduct.

B. For the purpose of all investigations and proceedings conducted by the board:

1. The board, the executive director and the administrative law judges on their own initiative, or on application of any person involved in the investigation, may issue subpoenas to compel the attendance and testimony of witnesses or to demand the production for examination or copying of documents or any other physical evidence that relates to medical competence, unprofessional conduct or the mental or physical ability of a licensee to safely practice medicine. Within five days after the service of a subpoena requiring the production of evidence, the recipient of the subpoena may petition the board to revoke, limit or modify the subpoena. The board shall take the requested action if in its opinion the evidence required does not relate to unlawful practices covered by this chapter, is not relevant to the charge that is the subject matter of the hearing or investigation or does not describe with sufficient particularity the physical evidence whose production is required. Any member of the board or any agent designated by the board may administer oaths or affirmations, examine witnesses and receive evidence. The superior court may enforce a subpoena issued by the board.

2. Any person appearing before the board has the right to be represented by counsel.

3. The superior court on application by the board has jurisdiction to issue an order to require the subject of the subpoena to appear before the board or its agent and produce evidence relating to the matter under investigation. On application by the subject of the subpoena, the court may revoke, limit or modify the subpoena if in the court's opinion the evidence demanded does not relate to unlawful practices covered by this chapter, is not relevant to the charge that is the subject matter of the hearing or investigation or does not describe with sufficient particularity the evidence whose production is required.

4. The superior court, on application by the board, has jurisdiction to issue an order enforcing a board-ordered examination for mental, physical or medical competence as provided in section 32-1855, subsection B.

§ 32-1855.02 Physicians; duty to report

If a death or an incident requiring emergency medical response occurs in a dental office or dental clinic during the administration of or recovery from general anesthesia or sedation by a physician, the physician shall, and any other person may, report the death or incident to the board within seven business days after the occurrence.

§ 32-1855.03 Health care institution duty to report; immunity; patient records; confidentiality

A. A health care institution as defined in section 36-401 or a subscription provider of health care shall report to the board any information it may have that appears to show that a physician may be guilty of unprofessional conduct or may be mentally or physically unable safely to engage in the practice of medicine. A health care institution or subscription provider of health care that provides information to the board in good faith is not subject to an action for civil damages as a result and, if requested, the board shall not disclose its name unless the testimony is essential to the disciplinary proceedings conducted pursuant to section 32-1855. The board shall report a health care institution or subscription provider of health care that fails to report as required by this section to the institution's licensing agency.

B. The chief executive officer, the medical director or the medical chief of staff of a health care institution or subscription provider of health care shall inform the board when the privileges of a physician to practice in the health care institution or subscription provider of health care are denied, revoked, suspended or limited because of actions by the physician that jeopardized patient health and welfare or when the physician resigned during pending proceedings for denial, revocation, suspension or limitation of privileges. A report to the board pursuant to this subsection shall contain a general statement of the reasons the health care institution or subscription provider of health care took an action to deny, revoke, suspend or limit a physician's privileges.

C. Hospital records, medical staff records, medical staff review committee records and testimony concerning these records and proceedings related to the creation of these records are confidential and are subject to the same discovery and use in legal actions only as are the original records in the possession and control of hospitals, their medical staff and their medical staff review committees. The board shall use these records and testimony only during the course of investigations and proceedings pursuant to this chapter.

D. Patient records, including clinical records, medical reports, laboratory statements and reports, any file or film, any other report or oral statement relating to diagnostic findings or treatment of patients, any information from which a patient or the patient's family might be identified or information received and records kept by the board as a result of the investigation made pursuant to this chapter are confidential.

E. Nothing in this chapter or any other provision of law relating to privileged communications between a physician and patient applies to investigations or proceedings conducted pursuant to this chapter. The board and its employees, agents and representatives shall keep confidential the name of a patient whose records are reviewed during the course of an investigation and proceedings.

§ 32-1856 Judicial review

Except as provided in section 41-1092.08, subsection H, an appeal to the superior court in Maricopa county may be taken from any final decision of the board pursuant to title 12, chapter 7, article 6.

§ 32-1857 Injunction

A. An injunction may be issued to enjoin the practice of osteopathic medicine by either of the following:

1. A person not licensed to practice osteopathic medicine nor exempt from the licensing requirement under this chapter.

2. A physician whose continued practice will or may cause irreparable damage to the public health and safety.

B. In a petition for injunction under subsection A, paragraph 1 it is sufficient to charge that the respondent on a certain day in a named county engaged in the practice of osteopathic medicine without a license and without being exempt from the licensing requirement under this chapter. For the purpose of this subsection damage or injury as a result of such practice is presumed.

C. A petition for injunction shall be filed in the name of this state by the board or at the request of the attorney general in Maricopa county or the county where the respondent resides or may be found.

D. Issuance of an injunction does not relieve the respondent from being subject to any other proceedings under law provided for in this chapter or otherwise. Violation of an injunction shall be punished as for contempt of court.

E. In all other respects injunction proceedings under this section shall be conducted in the same manner as other injunctions.

§ 32-1858 Violations; classification

A. A person who practices medicine and surgery as an osteopathic physician and surgeon without compliance with this chapter or a person who violates any of the provisions of this chapter is guilty of a class 5 felony.

B. A violation of each section of this chapter constitutes a separate offense and each day of continuing violation constitutes a separate offense.

§ 32-1859 Medical assistants

Nothing in this chapter shall be construed to prevent a medical assistant from assisting a doctor of osteopathic medicine pursuant to rules adopted by the board.

§ 32-1860 Acquired immune deficiency syndrome; disclosure of patient information; immunity; definition

A. Notwithstanding section 32-1854, it is not an act of unprofessional conduct for a physician to report to the department of health services the name of a patient's spouse or sex partner or a person with whom the patient has shared hypodermic needles or syringes if the physician knows that the patient has contracted or tests positive for the human immunodeficiency virus and that the patient has not or will not notify these people and refer them to testing. Before making the report to the department of health services, the physician shall first consult with the patient and ask the patient to release this information voluntarily.

B. It is not an act of unprofessional conduct for a physician who knows or has reason to believe that a significant exposure has occurred between a patient infected with the human immunodeficiency virus and a health care or public safety employee to inform the employee of the exposure. Before informing the employee, the physician shall consult with the patient and ask the patient to release this information voluntarily. If the patient does not release this information the physician may do so in a manner that does not identify the patient.

C. This section does not impose a duty to disclose information. A physician is not civilly or criminally liable for either disclosing or not disclosing information.

D. If a physician decides to make a disclosure pursuant to this section, he may request that the department of health services make the disclosure on his behalf.

E. For the purposes of this section, "significant exposure" means contact of a person's ruptured or broken skin or mucous membranes with another person's blood or body fluids, other than tears, saliva or perspiration, of a magnitude that the centers for disease control of the United States public health service have epidemiologically demonstrated can result in transmission of the human immunodeficiency virus.

§ 32-1861 Substance abuse treatment and rehabilitation program; private contract; funding

A. The board may establish a confidential program for the treatment and rehabilitation of licensees who are impaired by substance abuse. This program may include education, intervention, therapeutic treatment and posttreatment monitoring and support.

B. The board may contract with other organizations to operate the program established pursuant to subsection A of this section. A contract with a private organization shall include the following requirements:

1. Periodic reports to the board regarding treatment program activity.

2. Release to the board on demand of all treatment records.

3. Quarterly reports to the board regarding each physician's diagnosis and prognosis and recommendations for continuing care, treatment and supervision.

4. Immediate reporting to the board of the name of an impaired physician who the treating organization believes to be incapable of safely practicing medicine.

C. The board may allocate an amount of not more than twenty dollars from each fee it collects from the renewal of licenses pursuant to section 32-1826 for the administration of the program established by this section.

Article 4 Dispensing of Drugs and Devices

§ 32-1871 Dispensing of drugs and devices; conditions; exception; civil penalty

A. Except as provided in subsections B and F of this section, an osteopathic physician may dispense drugs and devices kept by the physician if:

1. All drugs are dispensed in packages labeled with the following information:

(a) The dispensing physician's name, address and telephone number.

(b) The date the drug is dispensed.

(c) The patient's name.

(d) The name and strength of the drug, directions for its use and any cautionary statements.

2. The dispensing physician enters into the patient's medical record the name and strength of the drug dispensed, the date the drug is dispensed and the therapeutic reason.

3. The dispensing physician keeps all drugs in a locked cabinet or room, controls access to the cabinet or room by a written procedure and maintains an ongoing inventory of its contents.

4. The dispensing physician annually registers with the board to dispense drugs and devices.

5. The dispensing physician pays the registration fee prescribed by the board pursuant to section 32-1826. This paragraph does not apply if the physician is dispensing in a nonprofit practice and neither the patient nor a third party pays or reimburses the physician or the nonprofit practice for the drugs or devices dispensed.

6. The dispensing physician labels dispensed drugs and devices and stores them according to rules adopted by the board.

B. An osteopathic physician may not dispense a schedule II controlled substance that is an opioid, except for an implantable device or an opioid that is for medication-assisted treatment for substance use disorders.

C. Except in an emergency situation, a physician who dispenses drugs without being registered by the board to do so is subject to a civil penalty by the board of at least $300 and not more than $1,000 for each transaction and is prohibited from further dispensing for a period of time as prescribed by the board.

D. Before dispensing a drug pursuant to this section, the patient shall be given a written prescription on which appears the following statement in bold type: "This prescription may be filled by the prescribing physician or by a pharmacy of your choice."

E. Except as provided in subsection F of this section, a physician shall dispense only to the physician's patient and only for conditions being treated by that physician.

F. A physician who dispenses not more than a two-day supply of a noncontrolled substance medication that is kept by a health care institution may dispense the noncontrolled substance medication under the dispensing registration of the medical director of the health care institution's emergency department or satellite emergency department and is not required to register to dispense medications pursuant to this section if both of the following apply:

1. The physician dispenses only to patients of the health care institution's emergency department or satellite emergency department for conditions diagnosed or treated at the emergency department or satellite emergency department.

2. The physician works only at the health care institution's emergency department or satellite emergency department.

G. The board shall enforce this section and shall establish rules regarding labeling, recordkeeping, storage and packaging of drugs that are consistent with the requirements of chapter 18 of this title. The board may conduct periodic inspections of dispensing practices to ensure compliance with this section and applicable rules.

H. If a physician fails to renew a registration to dispense or ceases to dispense for any reason, within thirty days that physician must notify the board in writing of the remaining inventory of drugs and devices and the manner in which they were disposed.

Chapter 18 Pharmacy

Article 1 Board of Pharmacy

§ 32-1901 Definitions

In this chapter, unless the context otherwise requires:

1. "Administer" means directly applying a controlled substance, prescription-only drug, dangerous drug or narcotic drug, whether by injection, inhalation, ingestion or any other means, to the body of a patient or research subject by a practitioner or by the practitioner's authorized agent or the patient or research subject at the direction of the practitioner.

2. "Advertisement" means all representations that are disseminated in any manner or by any means other than by labeling for the purpose of inducing, or that are likely to induce, directly or indirectly, the purchase of drugs, devices, poisons or hazardous substances.

3. "Advisory letter" means a nondisciplinary letter to notify a licensee or permittee that either:

(a) While there is insufficient evidence to support disciplinary action, the board believes that continuation of the activities that led to the investigation may result in further board action against the licensee or permittee.

(b) The violation is a minor or technical violation that is not of sufficient merit to warrant disciplinary action.

(c) While the licensee or permittee has demonstrated substantial compliance through rehabilitation, remediation or reeducation that has mitigated the need for disciplinary action, the board believes that repeating the activities that led to the investigation may result in further board action against the licensee or permittee.

4. "Antiseptic", if a drug is represented as such on its label, means a representation that it is a germicide, except in the case of a drug purporting to be, or represented as, an antiseptic for inhibitory use as a wet dressing, ointment or dusting powder or other use that involves prolonged contact with the body.

5. "Authorized officers of the law" means legally empowered peace officers, compliance officers of the board of pharmacy and agents of the division of narcotics enforcement and criminal intelligence of the department of public safety.

6. "Automated prescription-dispensing kiosk" means a mechanical system that is operated as an extension of a pharmacy, that maintains all transaction information within the pharmacy operating system, that is separately permitted from the pharmacy and that performs operations that either:

(a) Accept a prescription or refill order, store prepackaged or repackaged medications, label and dispense patient-specific prescriptions and provide counseling on new or refilled prescriptions.

(b) Dispense or deliver a prescription or refill that has been prepared by or on behalf of the pharmacy that oversees the automated prescription-dispensing kiosk.

7. "Board" or "board of pharmacy" means the Arizona state board of pharmacy.

8. "Certificate of composition" means a list of a product's ingredients.

9. "Certificate of free sale" means a document that authenticates a product that is generally and freely sold in domestic or international channels of trade.

10. "Color additive" means a material that either:

(a) Is any dye, pigment or other substance that is made by a process of synthesis or similar artifice or that is extracted, isolated or otherwise derived, with or without intermediate or final change of identity, from any vegetable, animal, mineral or other source.

(b) If added or applied to a drug, or to the human body or any part of the human body, is capable of imparting color, except that color additive does not include any material that has been or may be exempted under the federal act. Color includes black, white and intermediate grays.

11. "Compounding" means preparing, mixing, assembling, packaging or labeling a drug by a pharmacist or an intern or pharmacy technician under the pharmacist's supervision, for the purpose of dispensing to a patient based on a valid prescription order. Compounding includes preparing drugs in anticipation of prescription orders prepared on routine, regularly observed prescribing patterns and preparing drugs as an incident to research, teaching or chemical analysis or for administration by a medical practitioner to the medical practitioner's patient and not for sale or dispensing. Compounding does not include preparing commercially available products from bulk compounds or preparing drugs for sale to pharmacies, practitioners or entities for the purpose of dispensing or distribution.

12. "Compressed medical gas distributor" means a person that holds a current permit issued by the board to distribute compressed medical gases to compressed medical gas suppliers and other entities that are registered, licensed or permitted to use, administer or distribute compressed medical gases.

13. "Compressed medical gases" means gases and liquid oxygen that a compressed medical gas distributor or manufacturer has labeled in compliance with federal law.

14. "Compressed medical gas order" means an order for compressed medical gases that is issued by a medical practitioner.

15. "Compressed medical gas supplier" means a person that holds a current permit issued by the board to supply compressed medical gases pursuant to a compressed medical gas order and only to the consumer or the patient.

16. "Controlled substance" means a drug, substance or immediate precursor that is identified, defined or listed in title 36, chapter 27, article 2 or the rules adopted pursuant to title 36, chapter 27, article 2.

17. "Corrosive" means any substance that when it comes in contact with living tissue will cause destruction of the tissue by chemical action.

18. "Counterfeit drug" means a drug that, or the container or labeling of which, without authorization, bears the trademark, trade name or other identifying mark, imprint, number or device, or any likeness of these, of a manufacturer, distributor or dispenser other than the person that in fact manufactured, distributed or dispensed that drug.

19. "Dangerous drug" has the same meaning prescribed in section 13-3401.

20. "Day" means a business day.

21. "Decree of censure" means an official action that is taken by the board and that may include a requirement for restitution of fees to a patient or consumer.

22. "Deliver" or "delivery" means the actual, constructive or attempted transfer from one person to another whether or not there is an agency relationship.

23. "Deputy director" means a pharmacist who is employed by the board and selected by the executive director to perform duties as prescribed by the executive director.

24. "Device", except as used in paragraph 18 of this section, section 32-1965, paragraph 4 and section 32-1967, subsection A, paragraph 15 and subsection C, means an instrument, apparatus or contrivance, including its components, parts and accessories, including all such items under the federal act, that is intended either:

(a) For use in diagnosing, curing, mitigating, treating or preventing disease in the human body or other animals.

(b) To affect the structure or any function of the human body or other animals.

25. "Director" means the director of the division of narcotics enforcement and criminal investigation of the department of public safety.

26. "Direct supervision of a pharmacist" means that the pharmacist is present. If relating to the sale of certain items, direct supervision of a pharmacist means that a pharmacist determines the legitimacy or advisability of a proposed purchase of those items.

27. "Dispense" means to deliver to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including prescribing, administering, packaging, labeling or compounding as necessary to prepare for that delivery.

28. "Dispenser" means a practitioner who dispenses.

29. "Distribute" means to deliver, other than by administering or dispensing.

30. "Distributor" means a person who distributes.

31. "Drug" means:

(a) Articles that are recognized, or for which standards or specifications are prescribed, in the official compendium.

(b) Articles that are intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in the human body or other animals.

(c) Articles other than food that are intended to affect the structure or any function of the human body or other animals.

(d) Articles that are intended for use as a component of any articles specified in subdivision (a), (b) or (c) of this paragraph but does not include devices or their components, parts or accessories.

32. "Drug enforcement administration" means the drug enforcement administration of the United States department of justice or its successor agency.

33. "Drug or device manufacturing" means producing, preparing, propagating or processing a drug or device, either directly or indirectly, by extraction from substances of natural origin or independently by means of chemical synthesis and includes any packaging or repackaging of substances or labeling or relabeling of its container and promoting and marketing the same. Drug or device manufacturing does not include compounding.

34. "Durable medical equipment" means technologically sophisticated medical equipment as prescribed by the board in rule that a patient or consumer may use in a home or residence and that may be a prescription-only device.

35. "Durable medical equipment distributor":

(a) Means a person that stores or distributes durable medical equipment other than to the patient or consumer.

(b) Includes a virtual durable medical equipment distributor as prescribed in rule by the board.

36. "Durable medical equipment supplier":

(a) Means a person that sells, leases or supplies durable medical equipment to the patient or consumer.

(b) Includes a virtual durable medical equipment supplier as prescribed in rule by the board.

37. "Economic poison" means any substance that alone, in chemical combination with or in formulation with one or more other substances is a pesticide within the meaning of the laws of this state or the federal insecticide, fungicide and rodenticide act and that is used in producing, storing or transporting raw agricultural commodities.

38. "Enteral feeding" means nourishment that is provided by means of a tube inserted into the stomach or intestine.

39. "Established name", with respect to a drug or ingredient of a drug, means any of the following:

(a) The applicable official name.

(b) If there is no such name and the drug or ingredient is an article recognized in an official compendium, the official title in an official compendium.

(c) If neither subdivision (a) nor (b) of this paragraph applies, the common or usual name of the drug.

40. "Executive director" means the executive director of the board of pharmacy.

41. "Federal act" means the federal laws and regulations that pertain to drugs, devices, poisons and hazardous substances and that are official at the time any drug, device, poison or hazardous substance is affected by this chapter.

42. "Full-service wholesale permittee":

(a) Means a permittee who may distribute prescription-only drugs and devices, controlled substances and over-the-counter drugs and devices to pharmacies or other legal outlets from a place devoted in whole or in part to wholesaling these items.

(b) Includes a virtual wholesaler as defined in rule by the board.

43. "Good manufacturing practice" means a system for ensuring that products are consistently produced and controlled according to quality standards and covering all aspects of design, monitoring and control of manufacturing processes and facilities to ensure that products do not pose any risk to the consumer or public.

44. "Highly toxic" means any substance that falls within any of the following categories:

(a) Produces death within fourteen days in half or more than half of a group of ten or more laboratory white rats each weighing between two hundred and three hundred grams, at a single dose of fifty milligrams or less per kilogram of body weight, when orally administered.

(b) Produces death within fourteen days in half or more than half of a group of ten or more laboratory white rats each weighing between two hundred and three hundred grams, if inhaled continuously for a period of one hour or less at an atmospheric concentration of two hundred parts per million by volume or less of gas or vapor or two milligrams per liter by volume or less of mist or dust, provided the concentration is likely to be encountered by humans if the substance is used in any reasonably foreseeable manner.

(c) Produces death within fourteen days in half or more than half of a group of ten or more rabbits tested in a dosage of two hundred milligrams or less per kilogram of body weight, if administered by continuous contact with the bare skin for twenty-four hours or less. If the board finds that available data on human experience with any substance indicate results different from those obtained on animals in the dosages or concentrations prescribed in this paragraph, the human data shall take precedence.

45. "Hospital" means any institution for the care and treatment of the sick and injured that is approved and licensed as a hospital by the department of health services.

46. "Intern" means a pharmacy intern.

47. "Internship" means the practical, experiential, hands-on training of a pharmacy intern under the supervision of a preceptor.

48. "Irritant" means any substance, other than a corrosive, that on immediate, prolonged or repeated contact with normal living tissue will induce a local inflammatory reaction.

49. "Jurisprudence examination" means a board-approved pharmacy law examination that is written and administered in cooperation with the national association of boards of pharmacy or another board-approved pharmacy law examination.

50. "Label" means a display of written, printed or graphic matter on the immediate container of any article that, unless easily legible through the outside wrapper or container, also appears on the outside wrapper or container of the article's retail package. For the purposes of this paragraph, the immediate container does not include package liners.

51. "Labeling" means all labels and other written, printed or graphic matter that either:

(a) Is on any article or any of its containers or wrappers.

(b) Accompanies that article.

52. "Letter of reprimand" means a disciplinary letter that is a public document issued by the board and that informs a licensee or permittee that the licensee's or permittee's conduct violates state or federal law and may require the board to monitor the licensee or permittee.

53. "Limited service pharmacy" means a pharmacy that is approved by the board to practice a limited segment of pharmacy as indicated by the permit issued by the board.

54. "Manufacture" or "manufacturer":

(a) Means every person who prepares, derives, produces, compounds, processes, packages or repackages or labels any drug in a place, other than a pharmacy, that is devoted to manufacturing the drug.

(b) Includes a virtual manufacturer.

55. "Marijuana" has the same meaning prescribed in section 13-3401.

56. "Medical practitioner" means any medical doctor, doctor of osteopathic medicine, dentist, podiatrist, veterinarian or other person who is licensed and authorized by law to use and prescribe drugs and devices to treat sick and injured human beings or animals or to diagnose or prevent sickness in human beings or animals in this state or any state, territory or district of the United States.

57. "Medication order" means a written or verbal order from a medical practitioner or that person's authorized agent to administer a drug or device.

58. "Narcotic drug" has the same meaning prescribed in section 13-3401.

59. "New drug" means either:

(a) Any drug of which the composition is such that the drug is not generally recognized among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs as safe and effective for use under the conditions prescribed, recommended or suggested in the labeling.

(b) Any drug of which the composition is such that the drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized, but that has not, other than in the investigations, been used to a material extent or for a material time under those conditions.

60. "Nonprescription drug" or "over-the-counter drug" means any nonnarcotic medicine or drug that may be sold without a prescription and that is prepackaged and labeled for use by the consumer in accordance with the requirements of the laws of this state and federal law. Nonprescription drug does not include:

(a) A drug that is primarily advertised and promoted professionally to medical practitioners and pharmacists by manufacturers or primary distributors.

(b) A controlled substance.

(c) A drug that is required to bear a label that states "Rx only".

(d) A drug that is intended for human use by hypodermic injection.

61. "Nonprescription drug wholesale permittee":

(a) Means a permittee who may distribute only over-the-counter drugs and devices to pharmacies or other lawful outlets from a place devoted in whole or in part to wholesaling these items.

(b) Includes a virtual wholesaler as defined in rule by the board.

62. "Notice" means personal service or the mailing of a copy of the notice by certified mail and email addressed either to the person at the person's latest address of record in the board office or to the person and the person's attorney using the most recent information provided to the board in the board's licensing database.

63. "Nutritional supplementation" means vitamins, minerals and caloric supplementation. Nutritional supplementation does not include medication or drugs.

64. "Official compendium" means the latest revision of the United States pharmacopeia and the national formulary or any current supplement.

65. "Other jurisdiction" means one of the other forty-nine states, the District of Columbia, the Commonwealth of Puerto Rico or a territory of the United States of America.

66. "Package" means a receptacle that is defined or described in the United States pharmacopeia and the national formulary as adopted by the board.

67. "Packaging" means the act or process of placing a drug item or device in a container for the purpose or intent of dispensing or distributing the item or device to another.

68. "Parenteral nutrition" means intravenous feeding that provides an individual with fluids and essential nutrients the individual needs while the individual is unable to receive adequate fluids or feedings by mouth or by enteral feeding.

69. "Person" means an individual, partnership, corporation and association, and their duly authorized agents.

70. "Pharmaceutical care" means the provision of drug therapy and other pharmaceutical patient care services.

71. "Pharmacist" means an individual who is currently licensed by the board to practice the profession of pharmacy in this state.

72. "Pharmacist in charge" means the pharmacist who is responsible to the board for a licensed establishment's compliance with the laws and administrative rules of this state and of the federal government pertaining to the practice of pharmacy, the manufacturing of drugs and the distribution of drugs and devices.

73. "Pharmacist licensure examination" means a board-approved examination that is written and administered in cooperation with the national association of boards of pharmacy or any other board-approved pharmacist licensure examination.

74. "Pharmacy" means:

(a) Any place where drugs, devices, poisons or related hazardous substances are offered for sale at retail or where prescription orders are dispensed by a licensed pharmacist.

(b) Any place that displays on or in the place or that displays a sign on the place the words "pharmaceutical chemist", "apothecary", "druggist", "pharmacy", "drugstore", "drugs" or "drug sundries", any combination of these words, or any words of similar meaning in any language.

(c) Any place where the characteristic symbol of pharmacy or the characteristic prescription sign "Rx" is exhibited.

(d) Any building or other structure or portion of a building or other structure that is leased, used or controlled by a permittee to conduct the business authorized by the board at the address specified on the permit issued to the permittee.

(e) A remote dispensing site pharmacy.

(f) A remote hospital-site pharmacy.

(g) A satellite pharmacy.

75. "Pharmacy intern" means a person who has all of the qualifications and experience prescribed in section 32-1923.

76. "Pharmacy technician" means a person who is licensed pursuant to this chapter.

77. "Pharmacy technician trainee" means a person who is licensed pursuant to this chapter.

78. "Poison" or "hazardous substance" includes any of the following if intended and suitable for household use or use by children:

(a) Any substance that, according to standard works on medicine, pharmacology, pharmacognosy or toxicology, if applied to, introduced into or developed within the body in relatively small quantities by its inherent action uniformly produces serious bodily injury, disease or death.

(b) A toxic substance.

(c) A highly toxic substance.

(d) A corrosive substance.

(e) An irritant.

(f) A strong sensitizer.

(g) A mixture of any of the substances described in this paragraph, if the substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.

(h) A substance that is designated by the board to be a poison or hazardous substance. This subdivision does not apply to radioactive substances, economic poisons subject to the federal insecticide, fungicide and rodenticide act or the state pesticide act, foods, drugs and cosmetics subject to state laws or the federal act or substances intended for use as fuels when stored in containers and used in the heating, cooking or refrigeration system of a house. This subdivision applies to any substance or article that is not itself an economic poison within the meaning of the federal insecticide, fungicide and rodenticide act or the state pesticide act, but that is a poison or hazardous substance within the meaning of this paragraph by reason of bearing or containing an economic poison or hazardous substance.

79. "Practice of pharmacy":

(a) Means furnishing the following health care services as a medical professional:

(i) Interpreting, evaluating and dispensing prescription orders in the patient's best interests.

(ii) Compounding drugs pursuant to or in anticipation of a prescription order.

(iii) Labeling drugs and devices in compliance with state and federal requirements.

(iv) Participating in drug selection and drug utilization reviews, drug administration, drug or drug-related research and drug therapy monitoring or management.

(v) Providing patient counseling necessary to provide pharmaceutical care.

(vi) Properly and safely storing drugs and devices in anticipation of dispensing.

(vii) Maintaining required records of drugs and devices.

(viii) Offering or performing acts, services, operations or transactions that are necessary to conduct, operate, manage and control a pharmacy.

(ix) Providing patient care services pursuant to a collaborative practice agreement with a provider as outlined in section 32-1970.

(x) Initiating and administering immunizations or vaccines pursuant to section 32-1974.

(b) Does not include initiating a prescription order for any medication, drug or other substance used to induce or cause a medication abortion as defined in section 36-2151.

80. "Practitioner" means any physician, dentist, veterinarian, scientific investigator or other person who is licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or administer a controlled substance in the course of professional practice or research in this state, or any pharmacy, hospital or other institution that is licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or administer a controlled substance in the course of professional practice or research in this state.

81. "Preceptor" means a pharmacist who is serving as the practical instructor of an intern and who complies with section 32-1923.

82. "Precursor chemical" means a substance that is:

(a) The principal compound that is commonly used or that is produced primarily for use and that is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit manufacture.

(b) Listed in section 13-3401, paragraph 26 or 27.

83. "Prescription" means either a prescription order or a prescription medication.

84. "Prescription medication" means any drug, including label and container according to context, that is dispensed pursuant to a prescription order.

85. "Prescription-only device" includes:

(a) Any device that is limited by the federal act to use under the supervision of a medical practitioner.

(b) Any device required by the federal act to bear on its label essentially the legend "Rx only".

86. "Prescription-only drug" does not include a controlled substance but does include:

(a) Any drug that because of its toxicity or other potentiality for harmful effect, the method of its use, or the collateral measures necessary to its use is not generally recognized among experts, qualified by scientific training and experience to evaluate its safety and efficacy, as safe for use except by or under the supervision of a medical practitioner.

(b) Any drug that is limited by an approved new drug application under the federal act or section 32-1962 to use under the supervision of a medical practitioner.

(c) Every potentially harmful drug, the labeling of which does not bear or contain full and adequate directions for use by the consumer.

(d) Any drug, other than a controlled substance, that is required by the federal act to bear on its label the legend "Rx only".

87. "Prescription order" means any of the following:

(a) An order to a pharmacist for drugs or devices that is issued and signed by a duly licensed medical practitioner in the authorized course of the practitioner's professional practice.

(b) An order that is transmitted to a pharmacist through word of mouth, telephone or other means of communication directed by that medical practitioner. Prescription orders received by word of mouth, telephone or other means of communication shall be maintained by the pharmacist pursuant to section 32-1964, and the record so made by the pharmacist constitutes the original prescription order to be dispensed by the pharmacist. This paragraph does not alter or affect laws of this state or any federal act requiring a written prescription order.

(c) An order that is initiated by a pharmacist pursuant to a collaborative practice agreement with a provider as outlined in section 32-1970, or immunizations or vaccines administered by a pharmacist pursuant to section 32-1974.

(d) A diet order or an order for enteral feeding, nutritional supplementation or parenteral nutrition that is initiated by a registered dietitian or other qualified nutrition professional in a hospital pursuant to section 36-416.

88. "Professionally incompetent" means:

(a) Incompetence based on a variety of factors, including a lack of sufficient pharmaceutical knowledge or skills or experience to a degree likely to endanger the health of patients.

(b) When considered with other indications of professional incompetence, a pharmacist or pharmacy intern who fails to obtain a passing score on a board-approved pharmacist licensure examination or a pharmacy technician or pharmacy technician trainee who fails to obtain a passing score on a board-approved pharmacy technician licensure examination.

89. "Radioactive substance" means a substance that emits ionizing radiation.

90. "Remote dispensing site pharmacy" means a pharmacy where a pharmacy technician or pharmacy intern prepares, compounds or dispenses prescription medications under remote supervision by a pharmacist.

91. "Remote hospital-site pharmacy" means a pharmacy located in a satellite facility that operates under the license issued by the department of health services to the hospital of which it is a satellite.

92. "Remote supervision by a pharmacist" means that a pharmacist directs and controls the actions of pharmacy technicians and pharmacy interns through the use of audio and visual technology.

93. "Revocation" or "revoke" means the official cancellation of a license, permit, registration or other approval authorized by the board for a period of two years unless otherwise specified by the board. A request or new application for reinstatement may be presented to the board for review before the conclusion of the specified revocation period upon review of the executive director.

94. "Safely engage in employment duties" means that a permittee or the permittee's employee is able to safely engage in employment duties related to the manufacture, sale, distribution or dispensing of drugs, devices, poisons, hazardous substances, controlled substances or precursor chemicals.

95. "Satellite facility" has the same meaning prescribed in section 36-422.

96. "Satellite pharmacy" means a work area located within a hospital or on a hospital campus that is not separated by other commercial property or residential property, that is under the direction of a pharmacist, that is a remote extension of a centrally licensed hospital pharmacy, that is owned by and dependent on the centrally licensed hospital pharmacy for administrative control, staffing and drug procurement and that is not required to be separately permitted.

97. "Symbol" means the characteristic symbols that have historically identified pharmacy, including show globes and mortar and pestle, and the sign "Rx".

98. "Third-party logistics provider" means an entity that provides or coordinates warehousing or other logistics services for the following items, but that does not take ownership of the items, and that distributes those items as directed by a manufacturer, wholesaler, dispenser or durable medical equipment supplier that is permitted by the board:

(a) Narcotic drugs or other controlled substances.

(b) Dangerous drugs as defined in section 13-3401.

(c) Prescription-only drugs and devices.

(d) Nonprescription drugs and devices.

(e) Precursor chemicals.

(f) Regulated chemicals as defined in section 13-3401.

99. "Toxic substance" means a substance, other than a radioactive substance, that has the capacity to produce injury or illness in humans through ingestion, inhalation or absorption through any body surface.

100. "Ultimate user" means a person who lawfully possesses a drug or controlled substance for that person's own use, for the use of a member of that person's household or for administering to an animal owned by that person or by a member of that person's household.

101. "Virtual manufacturer" means an entity that contracts for the manufacture of a drug or device, including a private label distributor as defined in 21 Code of Federal Regulations part 207.1, and that meets all of the following:

(a) Owns either:

(i) The new drug application or abbreviated new drug application number as defined by the United States food and drug administration for a drug.

(ii) The unique device identification number as defined by the United States food and drug administration for a prescription device.

(b) Is not involved in the physical manufacture of the drug or device.

(c) Contracts with a United States food and drug administration registered manufacturing entity for the physical manufacture of the drug or device.

§ 32-1901.01 Definition of unethical conduct and unprofessional conduct; permittees; licensees

A. In this chapter, unless the context otherwise requires, for the purposes of disciplining a permittee, "unethical conduct" means the following, whether occurring in this state or elsewhere:

1. Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude or any drug-related offense. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

2. Committing an act that is substantially related to the qualifications, functions or duties of a permittee and that demonstrates an actual or potential unfitness to hold a permit in light of the public's safety.

3. Working under the influence of alcohol or other drugs.

4. Using alcohol or other drugs to such a degree as to render the permittee unfit to perform the permittee's employment duties.

5. Violating a federal or state law or administrative rule relating to the manufacture, sale or distribution of drugs, devices, poisons, hazardous substances or precursor chemicals.

6. Violating a federal or state law or administrative rule relating to marijuana, prescription-only drugs, narcotics, dangerous drugs, controlled substances or precursor chemicals.

7. Violating state or federal reporting or recordkeeping requirements on transactions relating to precursor chemicals.

8. Intending to sell, transfer or distribute, or to offer for sale, transfer or distribution, or selling, transferring, distributing or dispensing or offering for sale, transfer or distribution an imitation controlled substance, imitation over-the-counter drug or imitation prescription-only drug as defined in section 13-3451.

9. Having the permittee's permit to manufacture, sell, distribute or dispense drugs, devices, poisons, hazardous substances or precursor chemicals denied or disciplined in another jurisdiction.

10. Committing an offense in another jurisdiction that if committed in this state would be grounds for discipline.

11. Obtaining or attempting to obtain a permit or a permit renewal by fraud, by misrepresentation or by knowingly taking advantage of the mistake of another person or an agency.

12. Wilfully making a false report or record that is required by this chapter, that is required by federal or state laws pertaining to drugs, devices, poisons, hazardous substances or precursor chemicals or that is required to pay for drugs, devices, poisons or hazardous substances or precursor chemicals or for services pertaining to such drugs or substances.

13. Knowingly filing with the board any application, renewal or other document that contains false or misleading information.

14. Providing false or misleading information or omitting material information in any communication to the board or the board's employees or agents.

15. Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate this chapter.

16. Violating a formal order, terms of probation, a consent agreement or a stipulation issued or entered into by the board or its executive director pursuant to this chapter.

17. Failing to comply with a board subpoena or failing to comply in a timely manner with a board subpoena without providing any explanation to the board for not complying with the subpoena.

18. Failing to provide the board or its employees or agents or an authorized federal or state official conducting a site investigation, inspection or audit with access to any place for which a permit has been issued or for which an application for a permit has been submitted.

19. Failing to notify the board of a change of ownership, management or pharmacist in charge.

20. Failing to promptly produce on the request of the official conducting a site investigation, inspection or audit any book, record or document.

21. Overruling or attempting to overrule a pharmacist in matters of pharmacy ethics or interpreting laws pertaining to the practice of pharmacy or the distribution of drugs or devices.

22. Distributing premiums or rebates of any kind in connection with the sale of prescription medication, other than to the prescription medication recipient.

23. Failing to maintain effective controls against the diversion of controlled substances or precursor chemicals to unauthorized persons or entities.

24. Fraudulently claiming to have performed a service.

25. Fraudulently charging a fee for a service.

26. Advertising drugs or devices, or services pertaining to drugs or devices, in a manner that is untrue or misleading in any particular, and that is known, or that by the exercise of reasonable care should be known, to be untrue or misleading.

B. In this chapter, unless the context otherwise requires, for the purposes of disciplining a pharmacist or pharmacy intern, "unprofessional conduct" means the following, whether occurring in this state or elsewhere:

1. Using alcohol or other drugs to such a degree as to render the licensee unfit to practice the profession of pharmacy.

2. Violating any federal or state law, rule or regulation relating to the manufacture or distribution of drugs and devices or the practice of pharmacy.

3. Dispensing a different drug or brand of drug in place of the drug or brand of drug ordered or prescribed without the express permission in each case of the orderer, or in the case of a prescription order, the medical practitioner. The conduct prohibited by this paragraph does not apply to substitutions authorized pursuant to section 32-1963.01.

4. Obtaining or attempting to obtain a license to practice pharmacy or a license renewal by fraud, by misrepresentation or by knowingly taking advantage of the mistake of another person or an agency.

5. Having the licensee's license to practice pharmacy denied or disciplined in another jurisdiction.

6. Claiming professional superiority in compounding or dispensing prescription orders.

7. Failing to comply with the mandatory continuing professional pharmacy education requirements of sections 32-1936 and 32-1937 and rules adopted by the board.

8. Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude or any drug-related offense. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

9. Working under the influence of alcohol or other drugs.

10. Violating a federal or state law or administrative rule relating to marijuana, prescription-only drugs, narcotics, dangerous drugs, controlled substances or precursor chemicals when determined by the board or by conviction in a federal or state court.

11. Knowingly dispensing a drug without a valid prescription order as required pursuant to section 32-1968, subsection A.

12. Knowingly dispensing a drug on a prescription order that was issued in the course of the conduct of business of dispensing drugs pursuant to diagnosis by mail or the internet, unless the order was any of the following:

(a) Made by a physician who provides temporary patient supervision on behalf of the patient's regular treating licensed health care professional or provides a consultation requested by the patient's regular treating licensed health care professional.

(b) Made in an emergency medical situation as defined in section 41-1831.

(c) Written to prepare a patient for a medical examination.

(d) Written or the prescription medications were issued for use by a county or tribal public health department for immunization programs or emergency treatment or in response to an infectious disease investigation, a public health emergency, an infectious disease outbreak or an act of bioterrorism. For the purposes of this subdivision, "bioterrorism" has the same meaning prescribed in section 36-781.

(e) Written or antimicrobials were dispensed by the prescribing or dispensing physician to a contact as defined in section 36-661 who is believed to have had significant exposure risk as defined in section 36-661 with another person who has been diagnosed with a communicable disease as defined in section 36-661.

(f) Written or the prescription medications were issued for administering immunizations or vaccines listed in the United States centers for disease control and prevention's recommended immunization schedule to a household member of a patient.

(g) For epinephrine delivery systems that are written or dispensed for a school district or charter school and that are to be stocked for emergency use pursuant to section 15-157 or for an authorized entity to be stocked pursuant to section 36-2226.01.

(h) For glucagon that is written or dispensed for a school district or charter school and that is to be stocked for emergency use pursuant to section 15-344.01.

(i) Written by a licensee through a telehealth program that is covered by the policies and procedures adopted by the administrator of a hospital or outpatient treatment center.

(j) Written pursuant to a physical or mental health status examination that was conducted through telehealth as defined in section 36-3601 and consistent with federal law.

(k) For naloxone hydrochloride or any other opioid antagonist approved by the United States food and drug administration and written or dispensed for use pursuant to section 36-2228 or 36-2266.

13. Failing to report in writing to the board any evidence that a pharmacist or pharmacy intern is or may be professionally incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to safely engage in the practice of pharmacy.

14. Failing to report in writing to the board any evidence that a pharmacy technician or pharmacy technician trainee is or may be professionally incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to safely engage in the permissible activities of a pharmacy technician or pharmacy technician trainee.

15. Failing to report in writing to the board any evidence that a permittee or a permittee's employee is or may be guilty of unethical conduct or is or may be violating this chapter or a rule adopted under this chapter.

16. Committing an offense in another jurisdiction that if committed in this state would be grounds for discipline.

17. Knowingly filing with the board any application, renewal or other document that contains false or misleading information.

18. Providing false or misleading information or omitting material information in any communication to the board or the board's employees or agents.

19. Violating or attempting to violate, directly or indirectly, or assisting in or abetting in the violation of, or conspiring to violate this chapter.

20. Violating a formal order, terms of probation, a consent agreement or a stipulation issued or entered into by the board or its executive director pursuant to this chapter.

21. Failing to comply with a board subpoena or failing to comply in a timely manner with a board subpoena without providing any explanation to the board for not complying with the subpoena.

22. Refusing without just cause to allow authorized agents of the board to examine documents that are required to be kept pursuant to this chapter or title 36.

23. Participating in an arrangement or agreement to allow a prescription order or a prescription medication to be left at, picked up from, accepted by or delivered to a place that is not licensed as a pharmacy. This paragraph does not prohibit a pharmacist or a pharmacy from using an employee or a common carrier to pick up prescription orders at or deliver prescription medications to the office or home of a medical practitioner, the residence of a patient or a patient's hospital.

24. Paying rebates or entering into an agreement for paying rebates to a medical practitioner or any other person in the health care field.

25. Providing or causing to be provided to a medical practitioner prescription order blanks or forms bearing the pharmacist's or pharmacy's name, address or other means of identification.

26. Fraudulently claiming to have performed a professional service.

27. Fraudulently charging a fee for a professional service.

28. Failing to report a change of the licensee's home address, contact information, employer or employer's address as required by section 32-1926.

29. Failing to report a change in the licensee's residency status as required by section 32-1926.01.

30. Failing to maintain effective controls against the diversion of controlled substances or precursor chemicals to unauthorized persons or entities.

C. In this chapter, unless the context otherwise requires, for the purposes of disciplining a pharmacy technician or pharmacy technician trainee, "unprofessional conduct" means the following, whether occurring in this state or elsewhere:

1. Using alcohol or other drugs to such a degree as to render the licensee or registrant unfit to perform the licensee's or registrant's employment duties.

2. Violating a federal or state law or administrative rule relating to the manufacture or distribution of drugs or devices.

3. Obtaining or attempting to obtain a pharmacy technician license or license renewal or pharmacy technician trainee registration by fraud, by misrepresentation or by knowingly taking advantage of the mistake of another person or an agency.

4. Having the licensee's license to practice as a pharmacy technician denied or disciplined in another jurisdiction.

5. Failing to comply with the mandatory continuing professional education requirements of section 32-1925, subsection H and rules adopted by the board.

6. Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude or any drug-related offense. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

7. Working under the influence of alcohol or other drugs.

8. Violating a federal or state law or administrative rule relating to marijuana, prescription-only drugs, narcotics, dangerous drugs, controlled substances or precursor chemicals when determined by the board or by conviction in a federal or state court.

9. Failing to report in writing to the board any evidence that a pharmacist or pharmacy intern is or may be professionally incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to safely engage in the practice of pharmacy.

10. Failing to report in writing to the board any evidence that a pharmacy technician or pharmacy technician trainee is or may be professionally incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to safely engage in the permissible activities of a pharmacy technician or pharmacy technician trainee.

11. Failing to report in writing to the board any evidence that a permittee or a permittee's employee is or may be guilty of unethical conduct or is or may be violating this chapter or a rule adopted under this chapter.

12. Committing an offense in another jurisdiction that if committed in this state would be grounds for discipline.

13. Knowingly filing with the board any application, renewal or other document that contains false or misleading information.

14. Providing false or misleading information or omitting material information in any communication to the board or the board's employees or agents.

15. Violating or attempting to violate, directly or indirectly, or assisting in or abetting in the violation of, or conspiring to violate this chapter.

16. Violating a formal order, terms of probation, a consent agreement or a stipulation issued or entered into by the board or its executive director pursuant to this chapter.

17. Failing to comply with a board subpoena or failing to comply in a timely manner with a board subpoena without providing any explanation to the board for not complying with the subpoena.

18. Failing to report a change of the licensee's or registrant's home address, contact information, employer or employer's address as required by section 32-1926.

19. Failing to report a change in the licensee's or registrant's residency status as required by section 32-1926.01.

§ 32-1902 Arizona state board of pharmacy; immunity

A. The Arizona state board of pharmacy is established consisting of the following members who are appointed by the governor:

1. Six pharmacists at least one of whom is a pharmacist employed by a licensed hospital and at least one of whom is employed by a community pharmacy and engaged in the day-to-day practice of pharmacy.

2. One pharmacy technician.

3. Two public members.

B. To be qualified for appointment:

1. A pharmacist must be licensed as a pharmacist in this state or any other jurisdiction for a period of at least ten years and licensed as a pharmacist and a resident in this state for a period of at least five years immediately before the date of appointment.

2. Each public member must be a resident of this state for a period of at least five years immediately before the date of appointment.

3. A pharmacy technician must be a practicing pharmacy technician in this state or any other jurisdiction for at least five years and be licensed as a pharmacy technician and a resident of this state for at least five years immediately before the date of appointment. A pharmacy technician appointed before July 1, 2009 does not have to meet the minimum five year licensure requirement of this paragraph.

C. Each pharmacist and pharmacy technician member shall serve for a term of five years. Public members may serve for a term of five years unless removed by the governor. The public members shall after the first of every year present a written report to the governor. Vacancies occurring on the board other than by expiration of term of office shall be filled for the unexpired portion of the term only.

D. On or before January 15 of each year in which a pharmacist or a pharmacy technician is to be appointed, the executive director of the pharmacy association of Arizona may submit to the governor a list of the names of at least seven of its members who have been nominated by the association, and who meet the requirements as provided in this section for the next occurring vacancy on the board. The governor may make appointments of licensed pharmacists and pharmacy technicians to the board from the nominees on the list or from others having the necessary qualifications.

E. Appointees to the board within thirty days after their appointment shall take and subscribe to an oath or affirmation, before a properly qualified officer, that they will faithfully and impartially perform the duties of their office. The executive director shall file the oath or affirmation with the secretary of state.

F. Members of the board are personally exempt from suit with respect to all acts done and actions taken in good faith and in furtherance of this chapter.

§ 32-1903 Organization; meetings; quorum; compensation of board; executive director; compensation; powers and duties

A. The board shall annually elect a president and a vice-president from among its membership and, subject to title 41, chapter 4, article 4, select an executive director who may or may not be a member of the board. The executive director shall serve at the pleasure of the board.

B. The president of the board shall preside at all of its meetings. The vice-president shall act if the president is absent. A majority of the membership of the board constitutes a quorum.

C. The executive director is the executive officer in charge of the board's office and shall administer this chapter under the direction of the board. The executive director shall make, keep and be in charge of all records and record books required to be kept by the board, including a register of all licensees and registered businesses under this chapter. The executive director shall attend to the correspondence of the board and perform other duties the board requires. The executive director is eligible to receive compensation as determined pursuant to section 38-611.

D. Any member of the board or the executive director may administer oaths in connection with the duties of the board. The books, registers and records of the board as made and kept by the executive director or under the executive director's supervision are prima facie evidence of the matter therein recorded in any court of law. Members of the board are eligible to receive compensation in the amount of two hundred dollars for each day of actual service in the business of the board and reimbursement for all expenses necessarily and properly incurred in attending meetings of or for the board.

E. The executive director may designate the deputy director to sign claims and other documents in the executive director's absence. If the executive director dies, becomes incapacitated or resigns, the deputy director shall serve as the executive director until the board selects a new executive director.

F. The executive director may cause to be published reports summarizing judgments, decrees, court orders and board action that may have been rendered under this chapter, including the nature of charges and the disposition of the charges. The executive director may disseminate information regarding drugs, devices, poisons or hazardous substances in situations the executive director believes involve imminent danger to health or gross deception of the consumer and report the results of investigations carried out under this chapter.

§ 32-1904 Powers and duties of board; immunity

A. The board shall:

1. Make bylaws and adopt rules that are necessary to protect the public and that pertain to the practice of pharmacy, the manufacturing, wholesaling or supplying of drugs, devices, poisons or hazardous substances, the use of pharmacy technicians and support personnel and the lawful performance of its duties.

2. Fix standards and requirements to register and reregister pharmacies, except as otherwise specified.

3. Investigate compliance as to the quality, label and labeling of all drugs, devices, poisons or hazardous substances and take action necessary to prevent the sale of these if they do not conform to the standards prescribed in this chapter, the official compendium or the federal act.

4. Enforce its rules. In so doing, the board or its agents have free access, during the hours reported with the board or the posted hours at the facility, to any pharmacy, manufacturer, wholesaler, third-party logistics provider, nonprescription drug permittee or other establishment in which drugs, devices, poisons or hazardous substances are manufactured, processed, packed or held, or to enter any vehicle being used to transport or hold such drugs, devices, poisons or hazardous substances for the purpose of:

(a) Inspecting the establishment or vehicle to determine whether any provisions of this chapter or the federal act are being violated.

(b) Securing samples or specimens of any drug, device, poison or hazardous substance after paying or offering to pay for the sample.

(c) Detaining or embargoing a drug, device, poison or hazardous substance in accordance with section 32-1994.

5. Examine and license as pharmacists and pharmacy interns all qualified applicants as provided by this chapter.

6. Require each applicant for an initial license to apply for a fingerprint clearance card pursuant to section 41-1758.03. If an applicant is issued a valid fingerprint clearance card, the applicant shall submit the valid fingerprint clearance card to the board with the completed application. If an applicant applies for a fingerprint clearance card and is denied, the applicant may request that the board consider the application for licensure notwithstanding the absence of a valid fingerprint clearance card. The board, in its discretion, may approve an application for licensure despite the denial of a valid fingerprint clearance card if the board determines that the applicant's criminal history information on which the denial was based does not alone disqualify the applicant from licensure.

7. Issue duplicates of lost or destroyed permits on the payment of a fee as prescribed by the board.

8. Adopt rules to rehabilitate pharmacists and pharmacy interns as provided by this chapter.

9. At least once every three months, notify pharmacies regulated pursuant to this chapter of any modifications on prescription writing privileges of podiatrists, dentists, doctors of medicine, registered nurse practitioners, osteopathic physicians, veterinarians, physician assistants, optometrists and homeopathic physicians of which it receives notification from the state board of podiatry examiners, state board of dental examiners, Arizona medical board, Arizona state board of nursing, Arizona board of osteopathic examiners in medicine and surgery, Arizona state veterinary medical examining board, Arizona regulatory board of physician assistants, state board of optometry or board of homeopathic and integrated medicine examiners.

10. Charge a permittee a fee, as determined by the board, for an inspection if the permittee requests the inspection.

11. Issue only one active or open license per individual.

12. Allow a licensee to regress to a lower level license on written explanation and review by the board for discussion, determination and possible action.

13. Open an investigation only if the identifying information regarding a complainant is provided or the information provided is sufficient to conduct an investigation.

14. Provide notice to an applicant, licensee or permittee using only the information provided to the board through the board's licensing database.

B. The board may:

1. Employ chemists, compliance officers, clerical help and other employees subject to title 41, chapter 4, article 4 and provide laboratory facilities for the proper conduct of its business.

2. Provide, by educating and informing the licensees and the public, assistance in curtailing abuse in the use of drugs, devices, poisons and hazardous substances.

3. Approve or reject the manner of storage and security of drugs, devices, poisons and hazardous substances.

4. Accept monies and services to assist in enforcing this chapter from other than licensees:

(a) For performing inspections and other board functions.

(b) For the cost of copies of the pharmacy and controlled substances laws, the annual report of the board and other information from the board.

5. Adopt rules for professional conduct appropriate to the establishment and maintenance of a high standard of integrity and dignity in the profession of pharmacy.

6. Grant permission to deviate from a state requirement for modernization of pharmacy practice, experimentation or technological advances.

7. Adopt rules for the training and practice of pharmacy interns, pharmacy technicians and support personnel.

8. Investigate alleged violations of this chapter, conduct hearings in respect to violations, subpoena witnesses and take such action as it deems necessary to revoke or suspend a license or a permit, place a licensee or permittee on probation or warn a licensee or permittee under this chapter or to bring notice of violations to the county attorney of the county in which a violation took place or to the attorney general.

9. By rule, approve colleges or schools of pharmacy.

10. By rule, approve programs of practical experience, clinical programs, internship training programs, programs of remedial academic work and preliminary equivalency examinations as provided by this chapter.

11. Assist in the continuing education of pharmacists and pharmacy interns.

12. Issue inactive status licenses as provided by this chapter.

13. Accept monies and services from the federal government or others for educational, research or other purposes pertaining to the enforcement of this chapter.

14. By rule, except from the application of all or any part of this chapter any material, compound, mixture or preparation containing any stimulant or depressant substance included in section 13-3401, paragraph 6, subdivision (c) or (d) from the definition of dangerous drug if the material, compound, mixture or preparation contains one or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system, provided that such admixtures are included in such combinations, quantity, proportion or concentration as to vitiate the potential for abuse of the substances that do have a stimulant or depressant effect on the central nervous system.

15. Adopt rules for the revocation, suspension or reinstatement of licenses or permits or the probation of licensees or permittees as provided by this chapter.

16. Issue a certificate of free sale to any person that is licensed by the board as a manufacturer for the purpose of manufacturing or distributing food supplements or dietary supplements as defined in rule by the board and that wants to sell food supplements or dietary supplements domestically or internationally. The application shall contain all of the following:

(a) The applicant's name, address, email address, telephone and fax number.

(b) The product's full, common or usual name.

(c) A copy of the label for each product listed. If the product is to be exported in bulk and a label is not available, the applicant shall include a certificate of composition.

(d) The country of export, if applicable.

(e) The number of certificates of free sale requested.

17. Establish an inspection process to issue certificates of free sale or good manufacturing practice certifications. The board shall establish in rule:

(a) A fee to issue certificates of free sale.

(b) A fee to issue good manufacturing practice certifications.

(c) An annual inspection fee.

18. Delegate to the executive director the authority to:

(a) If the president or vice president of the board concurs after reviewing the case, enter into an interim consent agreement with a licensee or permittee if there is evidence that a restriction against the license or permit is needed to mitigate danger to the public health and safety. The board may subsequently formally adopt the interim consent agreement with any modifications the board deems necessary.

(b) Take no action or dismiss a complaint that has insufficient evidence that a violation of statute or rule governing the practice of pharmacy occurred.

(c) Request an applicant or licensee to provide court documents and police reports if the applicant or licensee has been charged with or convicted of a criminal offense. The executive director may do either of the following if the applicant or licensee fails to provide the requested documents to the board within thirty business days after the request:

(i) Close the application, deem the application fee forfeited and not consider a new application complete unless the requested documents are submitted with the application.

(ii) Notify the licensee of an opportunity for a hearing in accordance with section 41-1061 to consider suspension of the licensee.

(d) Pursuant to section 36-2604, subsection B, review prescription information collected pursuant to title 36, chapter 28, article 1.

C. At each regularly scheduled board meeting, the executive director shall provide to the board a list of the executive director's actions taken pursuant to subsection B, paragraph 18, subdivisions (a), (c) and (d) of this section since the last board meeting.

D. The board may issue nondisciplinary civil penalties or delegate to the executive director the authority to issue nondisciplinary civil penalties. The nondisciplinary civil penalties shall be prescribed by the board in rule and issued using a board-approved form. If a licensee or permittee fails to pay a nondisciplinary civil penalty that the board has imposed on it, the board shall hold a hearing on the matter. In addition to any other nondisciplinary civil penalty adopted by the board, either of the following acts or omissions that is not an imminent threat to the public health and safety is subject to a nondisciplinary civil penalty:

1. An occurrence of either of the following:

(a) Failing to submit a remodel application before remodeling a permitted facility.

(b) Failing to notify the board of the relocation of a business.

2. The occurrence of any of the following violations or any of the violations adopted by the board in rule, with three or more violations being presented to the board as a complaint:

(a) The licensee or permittee fails to update the licensee's or permittee's online profile within ten days after a change in contact information, address, telephone number or email address.

(b) The licensee fails to update the licensee's online profile within ten days after a change in employment.

(c) The licensee fails to complete the required continuing education for a license renewal.

(d) The licensee fails to update the licensee's online profile to reflect a new pharmacist in charge within fourteen days after the position change.

(e) The permittee fails to update the permittee's online profile to reflect a new designated representative within ten days after the position change.

(f) The licensee or permittee fails to notify the board of a new criminal charge, arrest or conviction against the licensee or permittee in this state or any other jurisdiction.

(g) The licensee or permittee fails to notify the board of a disciplinary action taken against the licensee or permittee by another regulating agency in this state or any other jurisdiction.

(h) A licensee or permittee fails to renew a license or permit within sixty days after the license or permit expires. If more than sixty days have lapsed after the expiration of a license or permit, the licensee or permittee shall appear before the board.

(i) A new pharmacist in charge fails to conduct a controlled substance inventory within ten days after starting the position.

(j) A person fails to obtain a permit before shipping into this state anything that requires a permit pursuant to this chapter.

(k) Any other violations of statute or rule that the board or the board's designee deems appropriate for a nondisciplinary civil penalty.

E. The board shall develop substantive policy statements pursuant to section 41-1091 for each specific licensing and regulatory authority the board delegates to the executive director.

F. The executive director and other personnel or agents of the board are not subject to civil liability for any act done or proceeding undertaken or performed in good faith and in furtherance of the purposes of this chapter.

§ 32-1905 Meetings; time and place; annual report

A. The board of pharmacy shall hold meetings to consider license, permit and registration applications and to transact other business legally coming before it. The board must hold at least four meetings in each fiscal year.

B. The board shall designate the time and place of its meetings at least thirty days before each meeting.

C. The board shall submit an annual written report to the governor and to the Arizona pharmacy association that includes the names of all pharmacists, interns, pharmacy technicians, pharmacy technician trainees, pharmacies, wholesalers, third-party logistics providers and manufacturers authorized to practice under this chapter and a record of licenses, permits, registrations and renewals.

§ 32-1906 Membership in national associations; official attendance at professional meetings

A. The board may join and subscribe to state, district, regional or national organizations or publications relating to and dealing with pharmacy and manufacturing, wholesaling, and distribution of drugs, devices, poisons, and hazardous substances.

B. Members of the board, the executive director and compliance officers, if authorized by the board, and subject to legislative appropriation therefor, may attend the state, district, regional and national meetings and other educational meetings relating to any of the subjects as provided in subsection A that, in the discretion of the board, are necessary and for its best interests.

§ 32-1907 Arizona state board of pharmacy fund

(L24, Ch. 222, sec. 27 & Ch. 232, sec. 1. Eff. until 7/1/28)

A. Except as provided in section 32-1939, the executive director shall receive and receipt for all fees and other monies provided for in this chapter and shall deposit, pursuant to sections 35-146 and 35-147, fifteen percent of such monies in the state general fund and eighty-five percent in the Arizona state board of pharmacy fund. All monies derived from civil penalties collected pursuant to this chapter shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

B. Except as provided in subsection C of this section, monies deposited in the Arizona state board of pharmacy fund are subject to section 35-143.01.

C. From monies deposited in the Arizona state board of pharmacy fund pursuant to subsection A of this section, the executive director may transfer up to $500,000 annually to the controlled substances prescription monitoring program fund established by section 36-2605 for expenses related to the controlled substances prescription monitoring program as required by title 36, chapter 28.

D. From monies deposited in the Arizona state board of pharmacy fund pursuant to subsection A of this section, the executive director may transfer up to $1,000,000 annually to each the Arizona poison and drug information center and a poison and drug information center that serves Maricopa county for the purposes specified in section 36-1161 to supplement, and not supplant, any state general fund appropriation for those purposes.

§ 32-1907 (Version 2) Arizona state board of pharmacy fund

(L24, Ch. 222, sec. 28 & Ch. 232, sec. 1. Eff. 7/1/28)

A. Except as provided in section 32-1939, the executive director shall receive and receipt for all fees and other monies provided for in this chapter and shall deposit, pursuant to sections 35-146 and 35-147, ten percent of such monies in the state general fund and ninety percent in the Arizona state board of pharmacy fund. All monies derived from civil penalties collected pursuant to this chapter shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

B. Except as provided in subsection C of this section, monies deposited in the Arizona state board of pharmacy fund are subject to section 35-143.01.

C. From monies deposited in the Arizona state board of pharmacy fund pursuant to subsection A of this section, the executive director may transfer up to $500,000 annually to the controlled substances prescription monitoring program fund established by section 36-2605 for expenses related to the controlled substances prescription monitoring program as required by title 36, chapter 28.

D. From monies deposited in the Arizona state board of pharmacy fund pursuant to subsection A of this section, the executive director may transfer up to $1,000,000 annually to each the Arizona poison and drug information center and a poison and drug information center that serves maricopa county for the purposes specified in section 36-1161 to supplement, and not supplant, any state general fund appropriation for those purposes.

§ 32-1908 Scope of chapter

A. The provisions of this chapter regarding the selling of drugs, poisons, or hazardous substances shall be considered to include the sale, dispensing, furnishing or giving of any such article, or the supplying or applying of any such articles in the conduct of any drug, poison, or hazardous substance establishment.

B. Nothing in this chapter shall be construed to confer authority to license or regulate the collection, processing or distribution of whole human blood or its plasma, fractionations, products, derivatives or other human tissue procured, processed or distributed by federally licensed or regulated blood banks or tissue banks.

§ 32-1909 Donated medicine; donors; authorized recipients; requirements; immunity; definitions

A. A donor may donate medicine to an authorized recipient, and an authorized recipient may receive donated medicine from donors. Before a donor may make its first donation to an authorized recipient, the authorized recipient must verify and record all the following:

1. That the donor is legally authorized to possess the medicine.

2. The donor's name, address and telephone number and permit or license number, if applicable.

3. That the donor will remove or redact any patient names and prescription numbers on donated medicine or will otherwise maintain patient confidentiality by executing a confidentiality agreement with the authorized recipient.

B. Notwithstanding any other law, an authorized recipient may transfer donated medicine to another authorized recipient or to an entity participating in a drug donation program operated by another state. Medicine transferred pursuant to this section may be transferred only once.

C. An authorized recipient may accept into inventory only donated medicine that meets all of the following:

1. Is in unopened, tamper-evident packaging or that has been repackaged under this section.

2. Is not adulterated or misbranded.

3. Has been maintained in accordance and in compliance with the United States food and drug administration risk evaluation and mitigation strategies pursuant to 21 United States Code section 355-1, if applicable.

4. Is accompanied by an attestation from the donor stating that the medicine being donated has been kept in a temperature-controlled environment and has not been adulterated.

D. An authorized recipient may accept into inventory a donated biologic only if the donated biologic meets the requirements of subsection C of this section and is donated by a health care professional or an entity legally authorized to possess the biologic.

E. Donated medicine that does not meet the requirements of subsection C of this section must be disposed of by returning it to the donor, destroying it in an incinerator, medical waste hauler or other lawful method or transferring it to a returns processor. A record of disposed medicine shall contain a description of the disposal method, the date of disposal and the name, strength and quantity of each medicine disposed of. No other record of disposal is required.

F. A drug manufacturer, repackager, dispenser or wholesaler, other than a returns processor, that participates in this program shall comply with the requirements of 21 United States Code sections 360eee-1 through 360eee-4 relating to drug supply chain security.

G. All donated medicine received by an authorized recipient but not yet accepted into inventory shall be kept in a separate designated area. Before or when accepting a donation or transfer into inventory, the authorized recipient shall maintain a written or electronic inventory of the donation consisting of the name, strength and quantity of each accepted medicine and the name, address and telephone number of the donor. This record is not required if the donor and authorized recipient are under common ownership or common control. No other record of donation is required.

H. An authorized recipient must store and maintain donated medicine physically or electronically separated from other inventory and in a secure and temperature-controlled environment that meets the drug manufacturers' recommendations and United States pharmacopeia standards.

I. Repackaged medicine shall be labeled with the drug's name, strength and expiration date and shall be kept in a separate designated area until inspected and initialed by a health care professional. If multiple packaged donated medicines with varied expiration dates are repackaged together, the earliest expiration date shall be used.

J. An authorized recipient may administer or dispense only donated medicine that meets all of the following:

1. The requirements of subsection C of this section based on an inspection by a health care professional.

2. If dispensed to an eligible patient, is repackaged into a new container or has all previous patient information on the donated container redacted or removed.

3. Is properly labeled in accordance with board rules.

4. Has an expiration or beyond-use date brought forward from the donated medicine that will not expire before the medicine is completely used by the eligible patient based on the prescribing practitioner's directions for use or, for over-the-counter medicine, on the package's label.

K. An authorized recipient may dispense or administer donated medicine to an eligible patient only if otherwise allowed by law. Donated medicine may be dispensed or administered only to eligible patients pursuant to a valid prescription order and must have patient-specific written or electronic records maintained in accordance with board rules.

L. Donated medicine may not be dispensed or administered to an eligible patient if the prescriber writes or clearly displays on the face of the prescription form "DAW", "dispense as written" or any other language that indicates a substitution is not allowed.

M. The donation, transfer, receipt or facilitation of donated medicine pursuant to this section is not considered wholesale distribution and does not require licensing as a wholesale distributor.

N. Medicine donated under this section may not be resold and is considered nonsaleable. Charging a handling, dispensing or administrative fee under this section is not reselling a donated medicine. The board shall prescribe in rule the limits on the fees that an authorized recipient may charge under this section considering the medicine's retail cost for a monthly supply.

O. When performing any action under this section or otherwise processing donated medicine for tax, manufacturer or other credit, an authorized recipient is considered to be acting as a returns processor and shall comply with all recordkeeping requirements for nonsaleable returns under federal law.

P. An authorized recipient shall retain all records required by this section in a physical or electronic format for a period of at least seven years. A donor and authorized recipient may contract with each other or a third party to create or maintain records on each other's behalf. An identifier, such as a serial number or barcode, may be used in place of any information required to be in a record or on a label pursuant to this section if the identifier allows for such information to be readily retrievable. On request by the board, the identifier used for requested records shall be replaced with the original information. An identifier may not be used on patient labels when dispensing or administering a donated medicine.

Q. A donation or other transfer of possession or control is not a change of ownership unless it is specified as such by the authorized recipient. If a record of the donation's transaction information or history is required, the history must begin with the donor of the medicine and include all prior donations and, if the medicine was previously dispensed, must include only drug information required to be on the patient label in accordance with board rules.

R. A donor or authorized recipient shall make all records available for audit by the board within five business days after the request.

S. The following are not subject to civil liability, criminal liability or professional disciplinary action if acting in good faith under this section:

1. A person involved in the supply chain of donated medicine, including a donor, authorized recipient, manufacturer, repackager, wholesaler or pharmacy.

2. A person, including any employee, officer, volunteer, owner, partner, member, director, contractor or other person or entity associated with the person, that in compliance with this section prescribes, donates, receives, dispenses, administers, transfers, replenishes or repackages medicine, or facilitates any of the above pursuant to this section.

T. This section does not prohibit otherwise legal activities related to nonprescription drugs.

U. Each of the following entities may post on the entity's public website information regarding where and how donors may donate medicine, who qualifies as an eligible patient and how an eligible patient may access donated medicine:

1. Authorized recipients.

2. The department of health services.

3. The Arizona health care cost containment system.

4. Health profession regulatory boards as defined in section 32-3201.

V. For the purposes of this section:

1. "Authorized recipient" means any entity that has a license or permit in good standing in this state and that is legally authorized to possess medicine, including a wholesaler, distributor, reverse distributor, repackager, hospital, pharmacy or health care institution.

2. "Donor":

(a) Means any person, any individual member of the public or any entity legally authorized to possess medicine, including a manufacturer, wholesaler, distributor, third-party logistic provider, pharmacy, dispenser, clinic, surgical center, health center, detention and rehabilitation center, laboratory, medical school, pharmacy school, health care professional or health care facility.

(b) Includes government agencies and entities that are federally authorized to possess medicine, including drug manufacturers, repackagers, relabelers, outsourcing facilities, prisons and importers authorized by the United States food and drug administration.

3. "Eligible patient" means an individual who is indigent, uninsured, underinsured or enrolled in a public health benefits program.

4. "Health care professional" means a health care provider who is licensed or certified pursuant to this title and authorized to dispense or administer prescription drugs.

5. "Medicine" means both prescription and nonprescription drugs, including drugs approved by the United States food and drug administration and labeled for investigational use.

6. "Returns processor" has the same meaning prescribed in 21 United States Code section 360eee and includes a reverse distributor.

7. "Unopened, tamper-evident packaging" has the same meaning as United States pharmacopeia packaging and storage requirements, including unopened unit-dose, multiple-dose and immediate, secondary and tertiary packaging.

§ 32-1910 Emergencies; continued provision of services; rules

A. If a natural disaster or terrorist attack occurs and, as a consequence of the natural disaster or terrorist attack, a state of emergency is declared by the governor or by a county, city or town pursuant to its authority and the declared state of emergency results in individuals being unable to refill existing prescriptions, the board shall cooperate with this state and the county, city or town to ensure the provision of drugs, devices and professional services to the public.

B. If a natural disaster or terrorist attack occurs in another state and, as a consequence of the natural disaster or terrorist attack, a state of emergency is declared by the governor of that state and the declared state of emergency results in individuals being temporarily relocated to Arizona and unable to refill existing prescriptions, the board shall cooperate with this state to ensure the provision of drugs, devices and professional services to the relocated individuals.

C. If a state of emergency has been declared pursuant to this section, a pharmacist may work in the affected county, city or town and may dispense a onetime emergency refill prescription of up to a thirty-day supply of a prescribed medication if both of the following apply:

1. In the pharmacist's professional opinion the medication is essential to the maintenance of life or to the continuation of therapy.

2. The pharmacist makes a good faith effort to reduce the information to a written prescription marked "emergency prescription" and then files and maintains the prescription as required by law.

D. If the state of emergency declared pursuant to this section continues for at least twenty-one days after the pharmacist dispenses an emergency prescription pursuant to subsection C of this section, the pharmacist may dispense one additional emergency refill prescription of up to a thirty-day supply of the prescribed medication.

E. A pharmacist who is not licensed in this state, but who is currently licensed in another state, may dispense prescription medications in those affected counties, cities or towns in this state during the time that a declared state of emergency exists pursuant to this section if both of the following apply:

1. The pharmacist has proof of licensure in another state.

2. The pharmacist is engaged in a legitimate relief effort during the period of time an emergency has been declared pursuant to this section.

F. The board may adopt rules for the provision of pharmaceutical care and drug and device delivery during a declared emergency that is the consequence of a natural disaster or terrorist attack, including the use of temporary or mobile pharmacy facilities and nonresident licensed pharmacy professionals. The rules shall allow pharmacies that are owned by a health system to compound and repackage prescription drugs on a nonpatient-specific basis for the patients of that health system during a declared emergency that is the consequence of a natural disaster or terrorist attack.

G. A pharmacist's authority to dispense, compound or repackage prescriptions pursuant to this section ends when the declared state of emergency is terminated.

Article 2 Licensure and Permits

§ 32-1921 Exempted acts; exemption from registration fees; definition

A. This chapter does not prevent:

1. The prescription and dispensing of drugs or prescription medications by a registered nurse practitioner or clinical nurse specialist pursuant to rules adopted by the Arizona state board of nursing in consultation with the Arizona medical board, the Arizona board of osteopathic examiners in medicine and surgery and the Arizona state board of pharmacy.

2. The sale of nonprescription drugs that are sold at retail in original packages by a person holding a permit issued by the board under this chapter. This chapter does not require a person to hold a board-issued permit to sell only nonprescription drugs at retail in original packages.

3. The sale of drugs at wholesale by a wholesaler or manufacturer that holds the required permit issued by the board to a person who holds the required permit issued under this chapter.

4. The manufacturing of drugs by a person who is not a pharmacist and who holds the required permit issued by the board under this chapter.

5. The following health professionals from dispensing or personally administering drugs or devices to a patient for a condition being treated by the health professional:

(a) A doctor of medicine licensed pursuant to chapter 13 of this title.

(b) An osteopathic physician licensed pursuant to chapter 17 of this title.

(c) A homeopathic physician licensed pursuant to chapter 29 of this title.

(d) A podiatrist licensed pursuant to chapter 7 of this title.

(e) A dentist licensed pursuant to chapter 11 of this title.

(f) A doctor of naturopathic medicine who is authorized to prescribe natural substances, drugs or devices and who is licensed pursuant to chapter 14 of this title.

(g) An optometrist who is licensed pursuant to chapter 16 of this title and who is certified for topical or oral pharmaceutical agents.

6. A veterinarian licensed pursuant to chapter 21 of this title from dispensing or administering drugs to an animal or from dispensing or administering devices to an animal being treated by the veterinarian.

7. The use of any pesticide chemical, soil or plant nutrient or other agricultural chemical that is a color additive solely because of its effect in aiding, retarding or otherwise affecting directly or indirectly the growth or other natural physiological process of produce of the soil and thereby affecting its color whether before or after harvest.

8. A licensed practical or registered nurse employed by a person licensed pursuant to chapter 7, 11, 13, 14, 17 or 29 of this title from assisting in the delivery of drugs and devices to patients, in accordance with chapter 7, 11, 13, 14, 17 or 29 of this title.

9. The use of any mechanical device or vending machine in connection with the sale of any nonprescription drug, including proprietary and patent medicine. The board may adopt rules to prescribe conditions under which nonprescription drugs may be dispensed pursuant to this paragraph.

B. A person who is licensed pursuant to chapter 7, 11, 13, 14, 17 or 29 of this title and who employs a licensed practical or registered nurse who in the course of employment assists in the delivery of drugs and devices is responsible for the dispensing process.

C. Pursuant to a prescription order written by a physician for the physician's patients and dispensed by a licensed pharmacist, a physical therapist licensed pursuant to chapter 19 of this title, an occupational therapist licensed pursuant to chapter 34 of this title or an athletic trainer licensed pursuant to chapter 41 of this title may procure, store and administer nonscheduled legend and topical anti-inflammatories and topical anesthetics for use in phonophoresis and iontophoresis procedures and within the scope of practice of physical or occupational therapy or athletic training.

D. A public health facility operated by this state or a county and a qualifying community health center may dispense medication or devices to patients at no cost without providing a written prescription if the public health facility or the qualifying community health center meets all storage, labeling, safety and record keeping rules adopted by the board of pharmacy.

E. A person who is licensed pursuant to chapter 7, 11, 13, 14, 17 or 29 of this title, who is practicing at a public health facility or a qualifying community health center and who is involved in the dispensing of medication or devices only at a facility or center, whether for a charge or at no cost, shall register to dispense with the appropriate licensing board but is exempt from paying registration fees.

F. For the purposes of this section, "qualifying community health center" means a primary care clinic that is recognized as nonprofit under section 501(c)(3) of the United States internal revenue code and whose board of directors includes patients of the center and residents of the center's service area.

§ 32-1921.01 Disclosures on applications; licensees; registrants; applicability

A. A pharmacist, pharmacy intern, pharmacy technician and pharmacy technician trainee are not required to disclose the following information when filing an application under this chapter:

1. A single misdemeanor charge that was dismissed, expunged or set aside more than five years before the date of application.

2. A single misdemeanor conviction that occurred more than ten years before the date of application.

3. A single felony conviction that was reduced to a misdemeanor conviction or that was dismissed, expunged or set aside more than ten years before the date of application.

B. An applicant or a licensee or registrant who has had more than one of any charge or conviction specified in subsection A of this section shall disclose that information to the board.

C. Subsection A of this section applies to current licensees and registrants.

§ 32-1922 Qualifications of applicant; reciprocity; preliminary equivalency examination; honorary certificate; fee

A. An applicant for licensure as a pharmacist shall:

1. Be a graduate of a school or college of pharmacy or department of pharmacy of a university recognized by the board or the accreditation council for pharmacy education or qualify under subsection D of this section.

2. Have successfully completed, as substantiated by proper affidavits, a program of practical experience under the direct supervision of a licensed pharmacist who is approved by the board.

3. Pass the pharmacist licensure examination and jurisprudence examination approved by the board. An applicant who fails an examination three times shall petition the board for permission before retaking the examination. The board shall evaluate the petition and determine whether to require additional educational training before approving each additional retake of the examination.

4. Pay an application fee prescribed by the board of not more than $500. An applicant for reciprocal licensure shall pay the fee prescribed in section 32-1924, subsection D.

B. The board may license as a pharmacist, without a pharmacist licensure examination, a person who is licensed as a pharmacist by a pharmacist licensure examination in some other jurisdiction if that person:

1. Produces satisfactory evidence to the board of having had the required secondary and professional education and training.

2. Presents proof to the board's satisfaction that the person is licensed by a pharmacist licensure examination and that the person holds the license in good standing.

3. Presents proof to the board's satisfaction that any other license granted to the applicant by any other jurisdiction has not been suspended, revoked or otherwise restricted for any reason except nonrenewal or for failure to obtain the required continuing education credits in any jurisdiction where the applicant is currently licensed but not engaged in the practice of pharmacy.

4. Passes a board-approved jurisprudence examination.

C. Subsection B of this section applies only if the jurisdiction in which the person is licensed grants, under like conditions, reciprocal licensure as a pharmacist to a pharmacist who is licensed by examination in this state and the person holds a license in good standing issued by an active member board of the national association of boards of pharmacy.

D. If an applicant for licensure is a graduate of a pharmacy degree program at a school or college of pharmacy that was not recognized by the board at the time of the person's graduation, the applicant shall pass a preliminary equivalency examination approved by the board in order to qualify to take the examinations prescribed in subsection A of this section.

E. The preliminary equivalency examination required pursuant to subsection D of this section shall cover proficiency in English and academic areas the board deems essential to a satisfactory pharmacy curriculum.

F. An applicant who fails the preliminary equivalency examination required pursuant to subsection D of this section shall not retake the preliminary equivalency examination until the applicant files written proof with the board that the applicant has completed additional remedial academic work previously approved by the board to correct deficiencies in the applicant's education that were indicated by the results of the applicant's last preliminary equivalency examination.

G. A pharmacist who has been licensed in this state for at least fifty years shall be granted an honorary certificate of licensure by the board without the payment of the usual renewal fee, but that certificate of licensure does not confer an exemption from any other requirement of this chapter.

H. The board may require a pharmacist who has not been actively engaged in the practice of pharmacy for over one year to serve not more than four hundred hours in an internship training program approved by the board or its designee before the pharmacist may resume the active practice of pharmacy.

I. An applicant must complete the application process within twelve months after submitting the application.

§ 32-1923 Interns and intern preceptors; qualifications; licensure; purpose of internship

A. A pharmacist who meets the qualifications established by the board to supervise the training of a pharmacy intern shall comply with the rules of the board and be known as a pharmacy intern preceptor.

B. A person shall not act as a pharmacy intern until that person is licensed by the board. An employer shall verify that a person is currently licensed as a pharmacy intern before the employer allows that person to act as a pharmacy intern.

C. The board shall establish the preliminary educational qualifications for all pharmacy interns, which may include enrollment and attendance in a school or college of pharmacy approved by the board.

D. A pharmacy intern who is currently licensed may be employed in a pharmacy or any other place approved and authorized by the board for training interns and shall receive instruction in the practice of pharmacy, including manufacturing, wholesaling, dispensing of drugs and devices, compounding and dispensing prescription orders, clinical pharmacy, providing drug information, keeping records and making reports required by state and federal laws and other experience that, in the discretion of the board, provides the intern with the necessary experience to practice the profession of pharmacy. Pharmacy interns may compound, dispense and sell drugs, devices and poisons or perform other duties of a pharmacist only in the presence and under the immediate personal supervision of a pharmacist.

E. Intern training and licensure as a pharmacy intern under this section are for the purpose of acquiring practical experience in the practice of the profession of pharmacy before becoming licensed as a pharmacist and are not for the purpose of continued licensure under the pharmacy laws. If a pharmacy intern fails to complete pharmacy education within a period of six years, the intern is not eligible for relicensure as an intern without an acceptable explanation to the board that the intern intends to be and is working toward becoming a pharmacist.

F. The board may accept the experience of a pharmacy intern acquired in another jurisdiction on proper certification by the other jurisdiction.

§ 32-1923.01 Pharmacy technicians; pharmacy technician trainees; qualifications; remote dispensing site pharmacies

A. An applicant for licensure as a pharmacy technician must:

1. Be at least eighteen years of age.

2. Have a high school diploma or the equivalent of a high school diploma.

3. Complete a training program prescribed by board rules.

4. Pass a board-approved pharmacy technician examination.

B. An applicant to register as a pharmacy technician trainee must:

1. Be at least eighteen years of age.

2. Register with the board via an online application.

C. Before a pharmacy technician prepares, compounds or dispenses prescription medications at a remote dispensing site pharmacy, the pharmacy technician shall:

1. Complete, in addition to any other board-approved mandatory continuing professional education requirements, a two-hour continuing education program on remote dispensing site pharmacy practices provided by an approved provider.

2. Have at least one thousand hours of experience working as a pharmacy technician in an outpatient pharmacy setting under the direct supervision of a pharmacist.

D. A pharmacy technician working at a remote dispensing site pharmacy:

1. Shall maintain an active, nationally recognized pharmacy technician certification approved by the board.

2. May not perform extemporaneous sterile or nonsterile compounding but may prepare commercially available medications for dispensing, including the reconstitution of orally administered powder antibiotics.

§ 32-1924 Licenses; fees; rules; signatures; registration; online profiles

A. An applicant for licensure as a pharmacist shall pay the board an initial licensure fee of not more than $500.

B. An applicant for licensure as a pharmacist, intern or pharmacy technician shall pay a fee prescribed by the board that does not exceed $50 for issuance of a wall license. On payment of a fee of not more than $50, the board may issue a replacement wall license to a licensee who requests a replacement because the original was damaged or destroyed, because of a change of name or for other good cause as prescribed by the board.

C. An applicant for licensure as an intern shall pay a fee of not more than $75. A license issued pursuant to this subsection expires five years after it is issued. The board shall adopt rules to prescribe the requirements for the renewal of a license that expires before the pharmacy intern completes the education or training required for licensure as a pharmacist.

D. An applicant for reciprocal licensure as a pharmacist shall pay a fee of not more than $500 for the application and expense of investigating the applicant's pharmaceutical standing in the jurisdiction in which the applicant is licensed.

E. All pharmacist licenses shall bear the signatures of the executive director and a majority of the members of the board.

F. An applicant to register as a pharmacy technician trainee shall submit with the application a fee prescribed by the board that does not exceed $25. A pharmacy technician trainee may apply for licensure as a pharmacy technician within thirty-six months after registering as a pharmacy technician trainee. A pharmacy technician trainee registration may not be renewed or reissued.

G. An applicant for licensure as a pharmacy technician shall submit with the application a fee prescribed by the board that does not exceed $100.

H. A licensee or registrant shall create an online profile using the board's licensing software.

§ 32-1925 Renewal of license of pharmacists, interns and pharmacy technicians; fees; expiration dates; penalty for failure to renew; continuing education

A. Except for interns and pharmacy technician trainees, the board shall assign all persons who are licensed under this chapter to one of two license renewal groups. Except as provided in section 32-4301, a holder of a license certificate designated in the licensing database as even by way of verbiage or numerical value shall renew it biennially on or before November 1 of the even-numbered year, two years after the last renewal date. Except as provided in section 32-4301, a holder of a license certificate designated in the licensing database as odd by way of verbiage or numerical value shall renew it biennially on or before November 1 of the odd-numbered year, two years after the last renewal date. Failure to renew and pay all required fees on or before November 1 of the year in which the renewal is due suspends the license. The board shall vacate a suspension when the licensee pays all past due fees and reinstatement penalties. Reinstatement penalties shall not exceed $350. The board may waive collection of a fee or reinstatement penalty due after suspension under conditions established by a majority of the board.

B. A person shall not apply for license renewal more than sixty days before the expiration date of the license.

C. A person who is licensed as a pharmacist or a pharmacy technician and who has not renewed the license for five consecutive years shall furnish to the board satisfactory proof of fitness to be licensed as a pharmacist or a pharmacy technician. A person whose license has lapsed for two or more renewal cycles shall pay the fees for the two most recent renewal cycles and the penalties before being reinstated.

D. Biennial renewal fees for licensure shall be not more than:

1. For a pharmacist, $250.

2. For a pharmacy technician, $100.

3. For a duplicate renewal license, $25.

E. Fees that are designated to be not more than a maximum amount shall be set by the board for the following two fiscal years beginning November 1. The board shall establish fees approximately proportionate to the maximum fee allowed to cover the board's anticipated expenditures for the following two fiscal years. Variation in a fee is not effective except at the expiration date of a license.

F. The board shall not renew a license for a pharmacist unless the pharmacist has complied with the mandatory continuing professional pharmacy education requirements of sections 32-1936 and 32-1937.

G. The board shall prescribe intern licensure renewal fees that do not exceed $75. The license of an intern who does not receive specific board approval to renew the intern license or who receives board approval to renew but who does not renew and pay all required fees before the license expiration date is suspended after the license expiration date. The board shall vacate a suspension if the licensee pays all past due fees and penalties. Penalties shall not exceed $350. The board may waive collection of a fee or penalty due after suspension under conditions established by the board.

H. The board shall not renew a license for a pharmacy technician unless that person has a current board-approved license and has complied with board-approved mandatory continuing professional education requirements. If a pharmacy technician prepares, compounds or dispenses prescription medications at a remote dispensing site pharmacy, the pharmacy technician shall complete, in addition to any other board-approved mandatory continuing professional education requirements, a two-hour continuing education program on remote dispensing site pharmacy practices provided by an approved provider.

§ 32-1926 Notice of change of information required

A. Except as prescribed in subsection B of this section, a pharmacist, intern, pharmacy technician or pharmacy technician trainee, within ten days after a change in that person's employer, employer's address, home address or contact information, shall electronically update the person's online board profile or give written notice to the board office staff of the new information.

B. Pursuant to board rule, a pharmacist designated as the pharmacist in charge for a permit issued under this chapter shall give immediate notice to the board office staff of the initiation and termination of such responsibility. The pharmacist shall either electronically update the pharmacist's online board profile or give written notice to the board office staff of the new information.

§ 32-1926.01 Change in residency status; written notice required

A. A licensee shall give written notice to the board office staff of a change in the licensee's residency status authorized by the United States citizenship and immigration services.

B. If the licensee's residency status ceases to be authorized by the United States citizenship and immigration services, the licensee shall give written notice to the board office staff that the licensee voluntarily terminates the license.

§ 32-1927 Pharmacists; pharmacy interns; disciplinary action

A. A pharmacist or pharmacy intern is subject to disciplinary action by the board for any of the following:

1. The board determines that the licensee has committed an act of unprofessional conduct.

2. The licensee is found by psychiatric examination to be mentally unfit to practice the profession of pharmacy.

3. The licensee is found to be physically or mentally incapacitated to such a degree as to render the licensee unfit to practice the profession of pharmacy.

4. The licensee is found to be professionally incompetent to such a degree as to render the licensee unfit to practice the profession of pharmacy.

5. The license was issued through error.

B. A pharmacist or pharmacy intern who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable safely to engage in the practice of pharmacy or to be professionally incompetent is subject to any one or combination of the following:

1. A civil penalty of not more than $1,000 for each violation of this chapter or a rule adopted under this chapter.

2. A letter of reprimand.

3. A decree of censure.

4. Completion of board-designated continuing pharmaceutical education courses.

5. Probation.

6. Suspension or revocation of the license.

C. The board may charge the costs of formal hearings to the licensee whom it finds to be in violation of this chapter or a rule adopted under this chapter.

D. The board on its own motion may investigate any evidence that appears to show that a pharmacist or pharmacy intern is or may be professionally incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of pharmacy. Any person may, and a licensee or permittee of the board must, report to the board any information that appears to show that a pharmacist or pharmacy intern is or may be professionally incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of pharmacy. The board or the executive director shall notify the pharmacist or pharmacy intern as to the content of the complaint as soon as reasonable. Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages. It is an act of unprofessional conduct for any pharmacist or pharmacy intern to fail to report as required by this subsection.

E. The pharmacy permittee or pharmacist in charge of a pharmacy located in this state must inform the board if a pharmacist or pharmacy intern employed by the pharmacy is terminated because of actions by the pharmacist or pharmacy intern that appear to show that the pharmacist or pharmacy intern is or may be professionally incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of pharmacy, along with a general statement of the reasons that led the pharmacy to take the action. The pharmacy permittee or pharmacist in charge of a pharmacy located in this state must inform the board if a pharmacist or pharmacy intern under investigation resigns or if a pharmacist or pharmacy intern resigns in lieu of disciplinary action by the pharmacy. Notification must include a general statement of the reasons for the resignation. A person who reports information in good faith pursuant to this subsection is not subject to civil liability.

F. The board or, if delegated by the board, the executive director shall require any combination of mental, physical, psychological, psychiatric or medical competency examinations or pharmacist licensure examinations and conduct necessary investigations, including investigational interviews between representatives of the board and the pharmacist or pharmacy intern, to fully inform itself about any information filed with the board under this section. These examinations may also include biological fluid testing. The board may require the pharmacist or pharmacy intern, at that person's expense, to undergo assessment by a board-approved substance abuse treatment and rehabilitation program.

G. If after completing its investigation the board finds that the information provided pursuant to this section is not of sufficient seriousness to merit disciplinary action against the license of the pharmacist or pharmacy intern, the board may take any of the following actions:

1. Dismiss if the complaint is without merit.

2. File an advisory letter. The licensee may file a written response with the board within thirty days after receiving the advisory letter.

3. Require the licensee to complete board-designated continuing pharmaceutical education courses.

H. The board shall not disclose the name of the person who provides information regarding a licensee's drug or alcohol impairment or the name of the person who files a complaint if that person requests anonymity.

I. If after completing its investigation the board believes that the information is or may be true, it may request a conference with the pharmacist or pharmacy intern. If the pharmacist or pharmacy intern refuses the invitation for a conference and the investigation indicates that grounds may exist for revocation or suspension of a license, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, the board shall issue a formal notice that a hearing be held pursuant to title 41, chapter 6, article 10.

J. If through information provided pursuant to this section or by other means the board finds that the protection of the public health, welfare and safety requires emergency action against the license of a pharmacist or pharmacy intern, the board may restrict a license or order a summary suspension of a license pending proceedings for revocation or other action. If the board acts pursuant to this subsection, the board shall also serve the licensee with a written notice of complaint and formal hearing that sets forth the charges and licensee's right to a formal hearing before the board or an administrative law judge on the charges within sixty days pursuant to title 41, chapter 6, article 10.

K. If after completing the conference the board finds the information provided pursuant to this section is not of sufficient seriousness to merit revocation or suspension of a license, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, it may take the following actions:

1. Dismiss if the information is without merit.

2. File an advisory letter. The licensee may file a written response with the board within thirty days after the licensee receives the advisory letter.

3. Require the licensee to complete board-designated continuing pharmaceutical education courses.

L. If during a conference the board finds that the information provided pursuant to this section indicates that grounds may exist for revocation or suspension of a license, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, it may take the following actions:

1. Dismiss if the information is without merit.

2. File an advisory letter. The licensee may file a written response with the board within thirty days after the licensee receives the advisory letter.

3. Require the licensee to complete board-designated continuing pharmaceutical education courses.

4. Enter into an agreement with the licensee to discipline the licensee, restrict the licensee's practice or professional activities or rehabilitate, retrain or assess the licensee in order to protect the public and ensure the licensee's ability to safely engage in the practice of pharmacy. The agreement may include at least the following:

(a) Issuance of a letter of reprimand.

(b) Issuance of a decree of censure.

(c) Practice or professional restrictions, such as not acting as a pharmacist in charge or pharmacy intern preceptor or working with another pharmacist.

(d) Rehabilitative, retraining or assessment programs, including:

(i) Board-approved community service.

(ii) Successful completion of additional board-designated continuing pharmaceutical education courses.

(iii) Successful passage of board-approved pharmacist licensure examinations.

(iv) Successful completion of a board-approved substance abuse treatment and rehabilitation program at the licensee's own expense.

(e) A civil penalty of not more than $1,000 for each violation of this chapter or a rule adopted under this chapter.

(f) A period and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the licensee concerned. Probation may include temporary suspension and any or all of the disciplinary actions, practice or professional restrictions, rehabilitative, retraining or assessment programs listed in this section or any other program agreed to by the board and the licensee.

M. If the board finds that the information provided pursuant to this section and additional information provided during the conference warrants revocation or suspension of a license, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, it shall initiate formal proceedings pursuant to title 41, chapter 6, article 10.

N. If the licensee wishes to be present at the formal hearing in person or by representation, or both, the licensee must file with the board an answer to the charges in the notice of hearing. The answer must be in writing, be verified under oath and be filed within thirty days after service of the notice of hearing. Failure to answer the board's notice of hearing is deemed an admission of the charges in the notice of hearing.

O. An advisory letter is a nondisciplinary public document.

P. If the board during an investigation determines that a criminal violation might have occurred, it shall disclose its investigative evidence and information to the appropriate criminal justice agency for its consideration.

Q. In determining the appropriate disciplinary action under this section, the board shall consider all previous nondisciplinary and disciplinary actions against a licensee.

R. The board may deny a license to an applicant for the grounds prescribed in subsection A of this section.

S. A person who is licensed pursuant to this chapter or by any other jurisdiction and who has a license revoked or suspended shall not obtain a license as a pharmacy intern or pharmacy technician or a registration as a pharmacy technician trainee or work as a pharmacy intern, pharmacy technician or pharmacy technician trainee without the approval of the board or its designee.

§ 32-1927.01 Pharmacy technicians; pharmacy technician trainees; disciplinary action

A. A pharmacy technician or pharmacy technician trainee is subject to disciplinary action by the board for any of the following:

1. The board determines that the licensee or registrant has committed an act of unprofessional conduct.

2. The licensee or registrant is found by psychiatric examination to be mentally unfit to safely perform the licensee's or registrant's employment duties.

3. The licensee or registrant is found to be physically or mentally incapacitated to such a degree as to render the licensee or registrant unfit to safely perform the licensee's or registrant's employment duties.

4. The licensee or registrant is found to be professionally incompetent to such a degree as to render the licensee or registrant unfit to safely perform the licensee's or registrant's employment duties.

5. The license or registration was issued through error.

B. A pharmacy technician or pharmacy technician trainee who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable safely to engage in the practice of pharmacy or to be professionally incompetent is subject to any one or combination of the following:

1. A civil penalty of not more than $1,000 for each violation of this chapter or a rule adopted under this chapter.

2. A letter of reprimand.

3. A decree of censure.

4. Completion of board designated continuing education courses.

5. Probation.

6. Suspension or revocation of the license or registration.

C. The board may charge the costs of formal hearings to the licensee or registrant whom it finds to be in violation of this chapter or a rule adopted under this chapter.

D. The board on its own motion may investigate any evidence that appears to show that a pharmacy technician or pharmacy technician trainee is or may be professionally incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the permissible activities of a pharmacy technician or pharmacy technician trainee. Any person may, and a licensee, registrant or permittee of the board must, report to the board any information that appears to show that a pharmacy technician or pharmacy technician trainee is or may be professionally incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the permissible activities of a pharmacy technician or pharmacy technician trainee. The board or the executive director shall notify the pharmacy technician or pharmacy technician trainee as to the content of the complaint as soon as reasonable. Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages. It is an act of unprofessional conduct for any pharmacy technician or pharmacy technician trainee to fail to report as required by this subsection.

E. The pharmacy permittee or pharmacist in charge of a pharmacy located in this state must inform the board if a pharmacy technician or pharmacy technician trainee employed by the pharmacy is terminated because of actions by that person that appear to show that the person is or may be professionally incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the permissible activities of a pharmacy technician or pharmacy technician trainee, along with a general statement of the reasons that led the pharmacy to take the action. The pharmacy permittee or pharmacist in charge of a pharmacy located in this state must inform the board if a pharmacy technician or pharmacy technician trainee under investigation resigns or if a pharmacy technician or pharmacy technician trainee resigns in lieu of disciplinary action by the pharmacy. Notification must include a general statement of the reasons for the resignation. A person who reports information in good faith pursuant to this subsection is not subject to civil liability.

F. The board or, if delegated by the board, the executive director shall require any combination of mental, physical, psychological, psychiatric or medical competency examinations or pharmacy technician licensure examinations and conduct necessary investigations, including investigational interviews between representatives of the board and the pharmacy technician or pharmacy technician trainee, to fully inform itself about any information filed with the board pursuant to this section. These examinations may also include biological fluid testing. The board may require the licensee or registrant, at that person's expense, to undergo assessment by a board-approved substance abuse treatment and rehabilitation program.

G. If after completing its investigation the board finds that the information provided pursuant to this section is not of sufficient seriousness to merit disciplinary action against the license or registration of the pharmacy technician or pharmacy technician trainee, the board may take any of the following actions:

1. Dismiss if the complaint is without merit.

2. File an advisory letter. The licensee or registrant may file a written response with the board within thirty days after receiving the advisory letter.

3. Require the licensee or registrant to complete board-designated continuing pharmaceutical education courses.

H. The board shall not disclose the name of the person who provides information regarding a licensee's or registrant's drug or alcohol impairment or the name of the person who files a complaint if that person requests anonymity.

I. If after completing its investigation the board believes that the information is or may be true, it may request a conference with the licensee or registrant. If the licensee or registrant refuses the invitation for a conference and the investigation indicates that grounds may exist for revocation or suspension of a license or registration, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, the board shall issue a formal notice that a hearing be held pursuant to title 41, chapter 6, article 10.

J. If through information provided pursuant to this section or by other means the board finds that the protection of the public health, welfare and safety requires emergency action against the license or registration of a pharmacy technician or pharmacy technician trainee, the board may restrict a license or registration or order a summary suspension of a license or registration pending proceedings for revocation or other action. If the board acts pursuant to this subsection, the board shall also serve the licensee or registrant with a written notice of complaint and formal hearing that sets forth the charges made against the licensee or registrant and the licensee's or registrant's right to a formal hearing before the board or an administrative law judge on the charges within sixty days pursuant to title 41, chapter 6, article 10.

K. If after completing the conference the board finds the information provided pursuant to this section is not of sufficient seriousness to merit revocation or suspension of a license or registration, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, it may take the following actions:

1. Dismiss if the information is without merit.

2. File an advisory letter. The licensee or registrant may file a written response with the board within thirty days after the licensee or registrant receives the advisory letter.

3. Require the licensee or registrant to complete board-designated continuing pharmaceutical education courses.

L. If during a conference the board finds that the information provided pursuant to this section indicates that grounds may exist for revocation or suspension of a license or registration, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, it may take the following actions:

1. Dismiss if the information is without merit.

2. File an advisory letter. The licensee or registrant may file a written response with the board within thirty days after the licensee or registrant receives the advisory letter.

3. Require the licensee or registrant to complete board-designated continuing pharmaceutical education courses.

4. Enter into an agreement with the licensee or registrant to discipline the licensee or registrant, restrict the licensee's or registrant's practice or professional activities or rehabilitate, retrain or assess the licensee or registrant in order to protect the public and ensure the licensee's or registrant's ability to safely engage in the permissible activities of a pharmacy technician or pharmacy technician trainee. The agreement may include at least the following:

(a) Issuance of a letter of reprimand.

(b) Issuance of a decree of censure.

(c) Practice or professional restrictions, such as doing the following only under pharmacist supervision:

(i) Entering prescription or patient data.

(ii) Initiating or accepting verbal refill authorization.

(iii) Counting, pouring, packaging or labeling prescription medication.

(iv) Compounding, reconstituting, prepackaging or repackaging drugs.

(d) Rehabilitative, retraining or assessment programs, including:

(i) Board-approved community service.

(ii) Successful completion of additional board-designated continuing pharmaceutical education courses.

(iii) Successful passage of board-approved pharmacist technician licensure examinations.

(iv) Successful completion of a board-approved substance abuse treatment and rehabilitation program at the licensee's or registrant's own expense.

(e) A civil penalty of not more than $1,000 for each violation of this chapter or a rule adopted under this chapter.

(f) A period and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the licensee or registrant concerned. Probation may include temporary suspension and any or all of the disciplinary actions, practice or professional restrictions, rehabilitative, retraining or assessment programs listed in this section or any other program agreed to by the board and the licensee or registrant.

M. If the board finds that the information provided pursuant to this section and additional information provided during the conference warrants revocation or suspension of a license or registration, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, it shall initiate formal proceedings pursuant to title 41, chapter 6, article 10.

N. If the licensee or registrant wishes to be present at the formal hearing in person or by representation, or both, the licensee or registrant must file with the board an answer to the charges in the notice of hearing. The answer must be in writing, be verified under oath and be filed within thirty days after service of the notice of hearing. Failure to answer the board's notice of hearing is deemed an admission of the charges in the notice of hearing.

O. An advisory letter is a nondisciplinary public document.

P. If the board during an investigation determines that a criminal violation might have occurred, it shall disclose its investigative evidence and information to the appropriate criminal justice agency for its consideration.

Q. In determining the appropriate disciplinary action under this section, the board shall consider all previous nondisciplinary and disciplinary actions against a licensee or registrant.

R. The board may deny a license or registration to an applicant for the grounds prescribed in subsection A of this section.

S. A person who is licensed or registered pursuant to this chapter or by any other jurisdiction and who has a license or registration revoked or suspended shall not obtain a license or registration as a pharmacy technician or pharmacy technician trainee or work as a pharmacy technician or pharmacy technician trainee without the approval of the board or its designee.

§ 32-1927.02 Permittees; disciplinary action

A. The board may discipline a permittee if:

1. The board determines that the permittee or permittee's employee is guilty of unethical conduct pursuant to section 32-1901.01, subsection A.

2. Pursuant to a psychiatric examination, the permittee or the permittee's employee is found to be mentally unfit to safely engage in employment duties.

3. The board determines that the permittee or the permittee's employee is physically or mentally incapacitated to such a degree as to render the permittee or permittee's employee unfit to safely engage in employment duties.

4. The permit was issued through error.

5. A permittee or permittee's employee allows a person who does not possess a current license or registration issued by the board to work as a pharmacist, pharmacy intern, pharmacy technician or pharmacy technician trainee.

B. A permittee who after a formal hearing is found by the board to be guilty of unethical conduct, to be mentally or physically unable safely to engage in employment duties or to be in violation of this chapter or a rule adopted under this chapter or whose employee after a formal hearing is found by the board to be guilty of unethical conduct, to be mentally or physically unable safely to engage in employment duties or to be in violation of this chapter or a rule adopted under this chapter is subject to any one or combination of the following:

1. A civil penalty of not more than $1,000 for each violation of this chapter or a rule adopted under this chapter.

2. A letter of reprimand.

3. A decree of censure.

4. Completion of board-designated pharmacy law continuing education courses.

5. Probation.

6. Suspension or revocation of the permit.

C. The board may charge the costs of formal hearings to the permittee whom it finds to be in violation of this chapter or a rule adopted under this chapter or whose employee it finds to be in violation of this chapter or a rule adopted under this chapter.

D. The board on its own motion may investigate any evidence that appears to show that a permittee or permittee's employee is or may be guilty of unethical conduct, is or may be mentally or physically unable safely to engage in employment duties or is or may be in violation of this chapter or a rule adopted under this chapter. Any person may, and any licensee or permittee must, report to the board any information that appears to show that a permittee or permittee's employee is or may be guilty of unethical conduct, is or may be mentally or physically unable safely to engage in employment duties or is or may be in violation of this chapter or a rule adopted under this chapter. The board or the executive director shall notify the permittee as to the content of the complaint as soon as reasonable. Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages. It is an act of unethical conduct for any permittee to fail to report as required by this subsection.

E. The board or, if delegated by the board, the executive director shall require any combination of mental, physical, psychological, psychiatric or medical competency examinations and conduct necessary investigations, including investigational interviews between representatives of the board and the permittee or permittee's employee, to fully inform itself about any information filed with the board under subsection D of this section. These examinations may also include biological fluid testing. The board may require the permittee or permittee's employee, at that person's expense, to undergo assessment by a board-approved substance abuse treatment and rehabilitation program.

F. If after completing its investigation the board finds that the information provided pursuant to subsection D of this section is not of sufficient seriousness to merit disciplinary action against the permit, the board may take any of the following actions:

1. Dismiss if the complaint is without merit.

2. File an advisory letter. The permittee may file a written response with the board within thirty days after receiving the advisory letter.

3. Require the permittee to complete board-designated pharmacy law continuing education courses.

G. The board shall not disclose the name of the person who provides information regarding a permittee's or permittee's employee's drug or alcohol impairment or the name of the person who files a complaint if that person requests anonymity.

H. If after completing its investigation the board believes that the information is or may be true, it may request a conference with the permittee or permittee's employee. If the permittee or permittee's employee refuses the invitation for a conference and the investigation indicates that grounds may exist for revocation or suspension of a permit, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, the board shall issue a formal notice that a hearing be held pursuant to title 41, chapter 6, article 10.

I. If through information provided pursuant to subsection D of this section or by other means the board finds that the protection of the public health, welfare and safety requires emergency action against the permit, the board may restrict a permit or order a summary suspension of a permit pending proceedings for revocation or other action. If the board acts pursuant to this subsection, the board shall also serve the permittee with a written notice of complaint and formal hearing that sets forth the charges and the permittee's right to a formal hearing on the charges before the board or an administrative law judge within sixty days pursuant to title 41, chapter 6, article 10.

J. If after completing the conference the board finds the information provided pursuant to subsection D of this section is not of sufficient seriousness to merit revocation or suspension of a permit, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, it may take the following actions:

1. Dismiss if the information is without merit.

2. File an advisory letter. The permittee may file a written response with the board within thirty days after receiving the advisory letter.

3. Require the permittee to complete board-designated pharmacy law continuing education courses.

K. If during a conference the board finds that the information provided pursuant to subsection D of this section indicates that grounds may exist for revocation or suspension of a permit, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, it may take the following actions:

1. Dismiss if the information is without merit.

2. File an advisory letter. The permittee may file a written response with the board within thirty days after the permittee receives the advisory letter.

3. Require the permittee to complete board-designated pharmacy law continuing education courses.

4. Enter into an agreement with the permittee to discipline the permittee, restrict the permittee's business activities or rehabilitate or assess the permittee in order to protect the public and ensure the permittee's ability to safely engage in employment duties. The agreement may include, at a minimum, the following disciplinary actions, business activity restrictions and rehabilitative or assessment programs:

(a) Issuance of a letter of reprimand.

(b) Issuance of a decree of censure.

(c) Business activity restrictions, including limitations on the number, type, classification or schedule of drug, device, poison, hazardous substance, controlled substance or precursor chemical that may be manufactured, sold, distributed or dispensed.

(d) Successful completion of board-designated pharmacy law continuing education courses.

(e) Rehabilitative or assessment programs, including board-approved community service or successful completion of a board-approved substance abuse treatment and rehabilitation program at the permittee's own expense.

(f) A civil penalty of not more than $1,000 for each violation of this chapter or a rule adopted under this chapter.

(g) A period and terms of probation best adapted to protect the public health and safety and rehabilitate or assess the permittee concerned. Probation may include temporary suspension and any or all of the disciplinary actions, business practice restrictions, rehabilitative or assessment programs listed in this section or any other program agreed to by the board and the permittee.

L. If the board finds that the information provided pursuant to subsection D of this section and additional information provided during the conference indicate that grounds may exist for revocation or suspension of a permit, probation, issuance of a decree of censure or a letter of reprimand or imposition of a civil penalty, it shall initiate formal proceedings pursuant to title 41, chapter 6, article 10.

M. If the permittee wishes to be present at the formal hearing in person or by representation, or both, the permittee must file with the board an answer to the charges in the notice of hearing. The answer must be in writing, be verified under oath and be filed within thirty days after service of the notice of hearing. Failure to answer the board's notice of hearing is deemed an admission of the charges in the notice of hearing.

N. If the board, during any investigation, determines that a criminal violation might have occurred, it shall disclose its investigative evidence and information to the appropriate criminal justice agency for its consideration.

O. In determining the appropriate disciplinary action under this section, the board shall consider all previous nondisciplinary and disciplinary actions against a permittee.

P. The board may deny a permit to an applicant for the grounds prescribed in subsection A of this section.

Q. If the board approves a permit and the business fails to become operational within nine months after the date the permit is granted, the permit is no longer valid. The board may grant a onetime extension for the business to become operational.

§ 32-1927.03 Persons required to be permitted; formal hearing; disciplinary action

A. A person that resides in this state or in any other jurisdiction and that sells a narcotic or other controlled substance, a prescription-only drug or device, a nonprescription drug, a precursor chemical or a restricted chemical within or into this state shall hold a valid board-issued permit. If the person does not hold a valid board-issued permit, the person is subject to disciplinary action by the board.

B. A person that after a formal hearing is found by the board to be in violation of subsection A of this section may be subject to a civil penalty not to exceed one thousand dollars for each violation of this chapter or a rule adopted pursuant to this chapter.

C. The board may charge the cost of a formal hearing to the person that the board finds to be in violation of this chapter or a rule adopted pursuant to this chapter or whose employee the board finds to be in violation of this chapter or a rule adopted pursuant to this chapter.

D. The board on its own motion or in response to a complaint may inspect or investigate, or delegate to the executive director the authority to inspect or investigate, any evidence that appears to show a person is or may be acting in violation of subsection A of this section. The board may:

1. Send, or delegate to the executive director the authority to send, a cease and desist letter regarding the person's unauthorized business in this state.

2. Request a conference with the person if the board believes the information is or may be true. If the person refuses the invitation or fails to appear for the conference and the investigation indicates that grounds may exist for the board to impose a civil penalty, the board shall issue a formal notice that a hearing be held pursuant to title 41, chapter 6, article 10.

3. Dismiss the complaint if the complaint is without merit.

§ 32-1928 Hearings; restraining order; judicial review

A. Except as provided in subsection B of this section, a license shall be denied, revoked or suspended or a pharmacist or pharmacy intern shall be placed on probation or censured and a civil penalty imposed only after due notice and a hearing pursuant to title 41, chapter 6, article 10. A licensee shall respond in writing to the board when the licensee receives notice of the hearing.

B. If the board has reasonable grounds to believe and finds that the licensee has been guilty of deliberate and wilful violations, or that the public health, safety and welfare imperatively require immediate action, and incorporates a finding to that effect in its order, the board may order a summary suspension of the license pending a hearing. If the board issues an order of summary suspension, it shall serve the licensee with written notice of the complaint and hearing setting forth the charges and informing the licensee of the licensee's right to the hearing. The board shall institute the hearing within ten days after ordering the summary suspension. Service shall be by personal service as provided by the Arizona rules of civil procedure.

C. Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

D. With or without conditions, the board may reinstate the license of any pharmacist or pharmacy intern that it has placed on probation or whose license it has suspended or revoked.

§ 32-1929 Biennial registration of pharmacies, wholesalers, third-party logistics providers, manufacturers and similar places; application

A. Except as provided in section 32-4301, the board shall require and provide for biennial registration of every pharmacy, wholesaler, third-party logistics provider and manufacturer and any other place in which or from which drugs are sold, compounded, dispensed, stocked, exposed, manufactured or offered for sale.

B. Any person desiring to operate, maintain, open or establish a pharmacy, wholesaling firm or manufacturing plant, or any other place in which or from which drugs are manufactured, compounded, dispensed, stocked, exposed, sold or offered for sale, shall apply to the board for a permit before engaging in any such activity.

C. The application for a permit to operate a pharmacy, drug manufacturing facility or wholesaling facility in this state shall be made on a form prescribed and furnished by the board, which, when properly executed, indicates the ownership, trustee, receiver or other person or persons desiring the permit, including the pharmacist responsible to the board for the operation of a pharmacy or drug manufacturing facility, or other individual approved by and responsible to the board for the operation of wholesaling facilities, as well as the location, including the street name and number, and such other information as required by the board to establish the identity, exact location and extent of activities, in which or from which drugs are sold, manufactured, compounded, dispensed, stocked, exposed or offered for sale.

D. The application for a permit to operate a pharmacy, drug manufacturing facility or wholesaling facility outside of this state that will dispense, sell, transfer or distribute drugs into this state shall be made on a form prescribed and furnished by the board, which, when properly executed, indicates the ownership, trustee, receiver or other person or persons desiring the permit, including the individual approved by and responsible to the board for the operation of the pharmacy, drug manufacturing facility or wholesaling facility, as well as the location, including the street name and number, and such other information as required by the board to establish the identity, exact location and extent of activities, in which or from which drugs are sold, manufactured, compounded, dispensed, stocked, exposed or offered for sale.

E. If it is desired to operate, maintain, open or establish more than one pharmacy, or any other place of business in which or from which drugs are sold, manufactured, compounded, dispensed, stocked, exposed or offered for sale, a separate application shall be made and a separate permit shall be issued for each place, business or outlet.

§ 32-1930 Types of permits; restrictions on permits; discontinuance of pharmacy permit

A. On application, the board may issue the following classes or kinds of permits:

1. If approved by the board, a pharmacy, limited service pharmacy, automated prescription-dispensing kiosk, full service wholesale drug, third-party logistics provider, nonprescription drug wholesale and drug manufacturer's permit.

2. Drug packager or drug prepackager permit to an individual or establishment that is currently listed by the United States food and drug administration and has met the requirements of that agency to purchase, repackage, relabel or otherwise alter the manufacturer's original package of an approved drug product with the intent of reselling these items to persons or businesses authorized to possess or resell the repackaged, prepackaged or relabeled drug.

3. A durable medical equipment distributor and compressed medical gas distributor permit and a durable medical equipment supplier and compressed medical gas supplier permit.

B. The board shall deny or revoke a pharmacy permit if a medical practitioner receives compensation, either directly or indirectly, from a pharmacy as a result of the practitioner's prescription orders. This does not include compensation to a medical practitioner who is the owner of a building where space is leased to a pharmacy at the prevailing rate, not resulting in a rebate to the medical practitioner.

C. If a pharmacy permanently discontinues operation, the permittee shall immediately surrender the permit to the executive director. The permittee shall remove all drug signs and symbols, either within or without the premises, and shall remove or destroy all drugs, devices, poisons and hazardous substances.

D. An automated prescription-dispensing kiosk may not contain or dispense a controlled substance as defined in section 36-2501 and the controlled substances act (P.L. 91-513; 84 Stat. 1242; 21 United States Code section 802).

§ 32-1931 Permit fees; issuance; expiration; renewals; online profiles

A. The board shall assign the permit of all persons or firms issued under this chapter to one of two permit renewal groups. Except as provided in section 32-4301, a holder of a permit designated in the licensing database as even by way of verbiage or numerical value shall renew it biennially on or before November 1 of the even-numbered year, two years after the last renewal date. Except as provided in section 32-4301, a holder of a permit designated in the licensing database as odd by way of verbiage or numerical value shall renew it biennially on or before November 1 of the odd-numbered year, two years after the last renewal date. Failure to renew and pay all required fees on or before November 1 of the year in which the renewal is due suspends the permit. The board shall vacate a suspension when the permittee pays penalties of not to exceed $350 and all past due fees. The board may waive collection of a fee or penalty due after suspension under conditions established by a majority of the board.

B. Permit fees that are designated to be not more than a maximum amount shall be set by the board for the following two fiscal years beginning November 1. The board shall establish the fees approximately proportionate to the maximum fee allowed to cover the board's anticipated expenditures for the following two fiscal years. Variation in a fee is not effective except at the expiration date of the permit.

C. Applications for permits shall be accompanied by the following biennial fees as determined pursuant to subsection B of this section:

1. A drug manufacturer's permit, not more than $1,000.

2. A pharmacy permit, not more than $500.

3. A limited service pharmacy permit or an automated prescription-dispensing kiosk permit, not more than $500.

4. A full service wholesale drug permit or a third-party logistics provider permit, not more than $1,000.

5. A nonprescription drug wholesale permit, not more than $500.

6. A drug repackager's permit, not more than $1,000.

7. A durable medical equipment distributor and compressed medical gas distributor permit, not more than $200.

8. A durable medical equipment supplier and compressed medical gas supplier permit, not more than $100.

D. If an applicant is found to be satisfactory to the board, the executive director shall issue to the applicant a permit for each pharmacy, manufacturer, wholesaler or other place of business in which drugs are sold, manufactured, compounded, dispensed, stocked, exposed or offered for sale, for which application is made.

E. Permits issued under this section are not transferable.

F. If a permittee does not apply for renewal, the permit expires pursuant to subsection A of this section. A person may activate and renew an expired permit by filing the required application and fee. Renewal thirty days after the expiration date of a permit may be made only on payment of the required biennial renewal fee, all past due fees and a penalty of one-half of the amount of the applicable biennial renewal fee. The board may waive the collection of a fee or penalty due after suspension pursuant to conditions prescribed by the board.

G. A permittee shall create an online profile using the board's licensing software.

§ 32-1932.01 Substance abuse treatment and rehabilitation program; private contract; funding

A. The board may establish a program for the treatment and rehabilitation of licensees who are impaired by alcohol or drug abuse. This program shall include education, intervention, therapeutic treatment and posttreatment monitoring and support.

B. The board may contract with other organizations to operate the program established pursuant to subsection A of this section. A contract with a private organization shall include the following requirements:

1. Periodic reports to the board regarding treatment program activity.

2. Pursuant to a written request by the board or its executive director, release of all treatment records.

3. Quarterly reports to the board, by case number, regarding each participant's diagnosis, prognosis and recommendations for continuing care, treatment and supervision.

4. Immediate reporting to the board of the name of an impaired licensee who the treating organization believes to be a danger to self or others.

5. Reports to the board, as soon as possible, of the name of a participant who refuses to submit to treatment or whose impairment is not substantially alleviated through treatment.

C. The board may allocate an amount of not to exceed twenty dollars from each fee it collects from biennial renewal licenses pursuant to section 32-1925 for the operation of the program established by this section.

D. A licensee who is impaired by alcohol or drug abuse may enter into a stipulation order with the board, or the licensee may be placed on probation or be subject to other action as provided by law.

§ 32-1933 Display of license or permit

A. The holder of a permit granted under this chapter shall conspicuously display it in the location to which it applies.

B. A licensee shall maintain the licensee's current renewal license or duplicate current renewal license, if practicing in more than one location, in the practice site for inspection by the board or its designee or review by the public.

C. If a licensee practices in more than one place, the board may issue one or more duplicate current renewal licenses to the licensee on payment of a fee of not more than twenty-five dollars for each duplicate current renewal license.

§ 32-1934 Remote hospital-site pharmacy permittee; requirements

A. A remote hospital-site pharmacy permittee shall comply with all the provisions of this chapter requiring registration and regulation of pharmacies, with board rules and with applicable federal law.

B. A remote hospital-site pharmacy permittee shall ensure that:

1. The remote hospital-site pharmacy is supervised by a pharmacist who is located in this state and who is employed by the hospital.

2. The remote hospital-site pharmacy displays a sign visible to the public identifying the pharmacy as a remote hospital-site pharmacy and warning that the remote hospital-site pharmacy is under continuous video surveillance that is recorded and retained.

3. The remote hospital-site pharmacy uses an electronic recordkeeping system that is shared with and accessible by the pharmacy located in the hospital.

4. All drugs and devices furnished from the remote hospital-site pharmacy to patients of the satellite facility are verified by a pharmacist who is licensed in this state and who is employed by the hospital. If the satellite facility is an emergency department of the hospital, in the pharmacist's absence a registered nurse practitioner or professional nurse who is licensed pursuant to chapter 15 of this title, a physician who is licensed pursuant to chapter 13 or 17 of this title or a physician assistant who is licensed pursuant to chapter 25 of this title may obtain from the remote hospital-site pharmacy necessary drugs and devices that are ordered by a medical practitioner and that are needed by a patient in an emergency, according to policies approved by the hospital.

5. The pharmacist in charge develops and implements procedures regarding obtaining, storing and dispensing drugs for inpatient administration and devices and recordkeeping requirements.

6. If a noncontrolled substance single-patient use multidose medication was dispensed to a patient in a container for inpatient administration, the remote hospital-site pharmacy dispenses that medication for the patient on discharge, if needed.

C. A remote hospital-site pharmacy permittee shall:

1. Develop and maintain a policy and procedures manual and make the manual available to the board or its agent on request.

2. Maintain a perpetual inventory of controlled substances.

3. Ensure that there is continuous video surveillance of the remote hospital-site pharmacy and maintain recorded videos for at least sixty days.

4. Ensure that the pharmacist in charge from the pharmacy located in the hospital reconciles the inventory of controlled substances on a monthly basis.

D. A pharmacist may engage simultaneously in the practice of pharmacy at a reasonable number of remote hospital-site pharmacies as determined and approved by the hospital.

E. The board may adopt additional rules that are necessary to implement this section.

§ 32-1935 Approval of schools and colleges of pharmacy

The board of pharmacy shall adopt and promulgate standards and requirements for approval of schools and colleges of pharmacy.

§ 32-1936 Mandatory continuing professional pharmacy education

A. All pharmacists licensed in this state shall satisfactorily complete approved courses of continuing professional pharmacy education or continue their education by other means in accordance with rules adopted by the board before renewing a license.

B. The board by rule shall establish the form and content of courses for continuing professional pharmacy education and the number of hours required for renewal of a license.

§ 32-1937 Exceptions to continuing education requirements

A. The requirements of continuing professional pharmacy education provided in section 32-1936 do not apply to licensees beginning the date of initial licensure until the date of the first license renewal.

B. The board may make exceptions from the requirements of section 32-1936 in emergency or hardship cases or for good cause shown based on a written request for an exception from the requirements.

C. Pharmacists who are exempted from the requirements of continuing professional pharmacy education pursuant to subsection B of this section shall satisfactorily pass a written examination approved by the board for that purpose before license renewal.

§ 32-1939 Condition of probation; repayment of inspection costs

A. As a condition of probation, the board may require that a licensee or permittee be subject to additional compliance inspections or audits and pay the reasonable costs of these inspections and audits. These costs shall not exceed one thousand dollars. The board shall limit these additional inspections to no more than two per year.

B. Monies received pursuant to subsection A of this section shall be deposited, pursuant to sections 35-146 and 35-147, in the Arizona state board of pharmacy fund.

C. If a licensee or permittee fails to comply with a board order regarding the costs of additional inspections and audits, the board may enforce its order in the superior court in Maricopa County. The board may also impose additional sanctions against the licensee or permittee.

§ 32-1940 Investigations; hearings; conferences; records; confidentiality

A. Information received and records kept by the board in connection with investigations conducted pursuant to this chapter are confidential and are not open to the public or subject to civil discovery.

B. Notwithstanding any other law or code of ethics regarding practitioner confidences, the physician-patient privilege between a medical practitioner and a patient, both as it relates to the competency of the witness and to the exclusion of confidential communications, does not pertain to any board investigations or other proceedings conducted pursuant to this chapter to the extent necessary to determine whether a violation of this chapter has occurred. Communications or records disclosed pursuant to this subsection are confidential and may be used only in a judicial or administrative proceeding or investigation resulting from a report, investigation or hearing required or authorized under this chapter.

C. The board, its employees and agents and any other person receiving this information shall keep the identity of the patient confidential at all times.

D. The board shall report evidence of a crime uncovered during an investigation to the appropriate criminal justice agency.

E. This section does not prevent the board from disclosing investigative materials concerning a licensee's alleged violation of this chapter to the licensee, the licensee's attorney, another state or federal regulatory agency or a law enforcement agency.

§ 32-1941 Third-party logistics providers; permit required; designated representative; fingerprinting requirements

A. A third-party logistics provider that engages in logistics services into, within or from this state shall hold a third-party logistics provider permit in this state.

B. A third-party logistics provider shall comply with storage practices, including all of the following:

1. Maintain access to warehouse space of a suitable size to facilitate safe operations, including a suitable area to quarantine a suspect product.

2. Maintain adequate security.

3. Have written policies and procedures to:

(a) Address the receipt, security, storage, inventory, shipment and distribution of a product.

(b) Identify, record and report confirmed significant losses or thefts in the United States.

(c) Correct errors and inaccuracies in inventories.

(d) Provide support for manufacturer recalls.

(e) Prepare for, protect against and address any reasonably foreseeable crisis that affects a facility's security or operation, such as an employee strike, a fire or a flood.

(f) Ensure that any expired product is segregated from other products and returned to the manufacturer, repackager or agent of the manufacturer or repackager or is destroyed.

(g) Maintain records reflecting the receipt and distribution of products and supplies and records of inventories.

(h) Quarantine or destroy a suspect product if directed to do so by the respective manufacturer, wholesale distributor or dispenser or an authorized governmental agency.

C. A third-party logistics provider shall make its facility available to the board for inspection during regular business hours to ensure compliance with this section.

D. A third-party logistics provider shall have a designated representative at each facility who has not been convicted of any felony violation under any federal, state or local law relating to wholesale or retail prescription or over-the-counter dangerous drugs or dangerous devices distribution or the distribution of controlled substances.

E. A third-party logistics provider shall provide the board on the board's request with a list of all manufacturers, wholesale distributors, dispensers and durable medical equipment suppliers for whom the third-party logistics provider provides services at a facility.

F. A third-party logistics provider's designated representative shall have a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1, which shall be submitted with the completed application. If the third-party logistics provider changes its designated representative, the new designated representative shall have a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1 and submitted to the board before the change in representation is made.

Article 3 Regulation

§ 32-1961 Limit on dispensing, compounding and sale of drugs

A. Except as otherwise provided in this chapter, it is unlawful for any person to compound, sell or dispense any drugs or to dispense or compound the prescription orders of a medical practitioner, unless that person is a pharmacist or a pharmacy intern acting under the direct supervision of a pharmacist. This subsection does not prevent a pharmacy technician or support personnel from assisting in the dispensing of drugs if this is done pursuant to rules adopted by the board and under the direct supervision of a licensed pharmacist or under remote supervision by a pharmacist.

B. Except as otherwise provided in this chapter, it is unlawful for any person, without placing a pharmacist in active personal charge at each place of business, to:

1. Open, advertise or conduct a pharmacy.

2. Stock, expose or offer drugs for sale at retail, except as otherwise specifically provided.

3. Use or exhibit the title "drug", "drugs", "drugstore", "pharmacy", "apothecary" or "prescription" or any combination of these words or titles or any title, symbol or description of like import or any other term designed to take its place.

§ 32-1961.01 Remote dispensing site pharmacies

A. A remote dispensing site pharmacy shall obtain and maintain a pharmacy license issued by the board.

B. A remote dispensing site pharmacy shall meet all of the following requirements:

1. Either be jointly owned by a supervising pharmacy in this state or be operated under a contract with a pharmacy licensed and located in this state.

2. Be supervised by a pharmacist licensed and located in this state who is designated as the pharmacist who is responsible for the oversight of the remote dispensing site pharmacy.

3. Display a sign visible to the public indicating that the facility is a remote dispensing site pharmacy, that the facility is under continuous video surveillance and that the video is recorded and retained.

4. Use a common electronic recordkeeping system between the supervising pharmacy and the remote dispensing site pharmacy or allow the supervising pharmacy to access all of the remote dispensing site pharmacy's dispensing system records.

C. A pharmacist may supervise one remote dispensing site pharmacy if the pharmacist is also supervising and dispensing in a licensed pharmacy. A pharmacist may supervise up to two remote dispensing site pharmacies if the pharmacist is not simultaneously supervising and dispensing at another licensed pharmacy. A pharmacist may supervise additional remote dispensing site pharmacies with board approval.

D. A remote dispensing site pharmacy may store, hold and dispense all prescription medications. The remote dispensing site pharmacy shall:

1. Maintain a perpetual inventory of controlled substances.

2. Secure schedule II controlled substances that are opioids separately from other prescription medications used by this pharmacy locked by key, combination or other mechanical or electronic means to prohibit access by unauthorized personnel.

3. Require that the controlled substances prescription monitoring program's central database tracking system be queried pursuant to section 36-2606 by a pharmacist who is designated as the pharmacist responsible for the oversight of the remote dispensing site pharmacy before a prescription order for a schedule II controlled substance is dispensed.

4. Comply with any dispensing limits associated with the prescribing of schedule II controlled substances that are opioids.

5. Maintain a continuous system of video surveillance and recording of the pharmacy department for at least sixty days after the date of recording.

E. Each remote dispensing site pharmacy shall maintain a policy and procedures manual, which shall be made available to the board or its agent on request. In addition to any board-approved community pharmacy policy and procedure requirements, the policy and procedures manual shall include all of the following information:

1. A description of how the remote dispensing site pharmacy will comply with federal and state laws, rules and regulations.

2. The procedure for supervising the remote dispensing site pharmacy and counseling the patient or patient's caregiver using audio and visual technology that complies with the health insurance portability and accountability act of 1996.

3. The elements of a monthly inspection of the remote dispensing site pharmacy by the pharmacist who is designated as the pharmacist responsible for the oversight of the remote dispensing site pharmacy, including requirements for documentation and retention of the results of each inspection.

4. The procedure for reconciling on a monthly basis the perpetual inventory of controlled substances to the on-hand count of controlled substances at the remote dispensing site pharmacy.

5. A description of how the remote dispensing site pharmacy will improve patient access to a pharmacist and pharmacy services.

§ 32-1962 New drug; compliance with federal act; exception

A. No person shall manufacture, sell, offer or hold for sale or give away any new drug or device unless it fully complies with the provisions of the federal act.

B. This section shall not apply to the nutritional supplement amygdalin, a cyano-genetic glycoside, also known as laetrile and vitamin B-17, which is processed from the seeds of certain fruits including apricots, peaches and plums.

§ 32-1963 Liability of manager, proprietor or pharmacist in charge of a pharmacy; variances in quality of drugs or devices prohibited

A. The proprietor, manager, and pharmacist in charge of a pharmacy shall be responsible for the quality of drugs and devices sold or dispensed in the pharmacy, except those sold in original packages of the manufacturer.

B. No pharmacist or other person shall manufacture, compound, dispense, or offer for sale or cause to be manufactured, compounded, dispensed, or offered for sale any drug or device under or by a name recognized in the official compendium or the federal act which differs from the standard of strength, purity and quality specified therein as official at the time of manufacture, compounding, dispensing, or offering for sale, nor shall a pharmacist or other person manufacture, compound, dispense, or offer for sale, or cause to be manufactured, compounded, dispensed, or offered for sale, any drug or device, the strength, purity or quality of which falls below the required strength, purity or quality under which it is sold.

C. Within four working days of receiving a request, the proprietor, manager or pharmacist in charge shall provide the following documents relating to the acquisition or disposal of prescription-only and controlled substance medication if this information is requested by an authorized board agent in the course of his official duties:

1. Invoices.

2. Stock transfer documents.

3. Merchandise return memos.

4. Other related documentation.

§ 32-1963.01 Substitution for prescription drugs or biological products; requirements; label; definitions

A. If a medical practitioner prescribes a brand name drug and does not indicate an intent to prevent substitution as prescribed in subsection E of this section, a pharmacist may fill the prescription with a generic equivalent drug.

B. A pharmacist may substitute a biological product for a prescribed biological product only if all of the following conditions are met:

1. The United States food and drug administration has determined the substituted product to be an interchangeable biological product.

2. The prescribing physician does not designate in writing or electronically that substitution is prohibited in a manner pursuant to subsection E of this section.

3. The pharmacy informs the patient or person presenting the prescription of the substitution pursuant to subsection C of this section.

4. Within five business days after dispensing a biological product, the dispensing pharmacist or the pharmacist's designee makes an entry of the specific product provided to the patient, including the name of the product and the manufacturer. The communication shall be conveyed by making an entry that is electronically accessible to the prescriber through an interoperable electronic medical records system, an electronic prescribing technology, a pharmacy benefit management system, or a pharmacy record. Entry into an electronic records system as described in this paragraph is presumed to provide notice to the prescriber. Otherwise, the pharmacist shall communicate the biological product dispensed to the prescriber using fax, telephone, electronic transmission or other prevailing means, except that communication is not required if one of the following applies:

(a) There is no interchangeable biological product approved by the United States food and drug administration for the product prescribed.

(b) A refill prescription is not changed from the product dispensed on the prior filling of the prescription.

5. The pharmacy retains a record of the biological product dispensed pursuant to section 32-1964, subsection A.

C. Any pharmacy personnel shall notify the person presenting the prescription of the amount of the price difference between the brand name drug or biological product prescribed and the generic equivalent drug or interchangeable biological product, if both of the following apply:

1. The medical practitioner does not indicate an intent to prevent substitution with a generic equivalent drug or interchangeable biological product.

2. The transaction is not subject to third-party reimbursement.

D. The pharmacist shall place on the container the name of the drug or biological product dispensed followed by the words "generic equivalent for" or "interchangeable biological product for" followed by the brand or trade name of the product that is being replaced by the generic equivalent drug or interchangeable biological product. The pharmacist shall include the brand or trade name on the container or label of any contact lenses dispensed pursuant to this chapter.

E. A prescription generated in this state must be dispensed as written only if the prescriber writes or clearly displays "DAW", "dispense as written", "do not substitute" or "medically necessary" or any statement by the prescriber that clearly indicates an intent to prevent substitution on the face of the prescription form. A prescription from out of state or from agencies of the United States government must be dispensed as written only if the prescriber writes or clearly displays "do not substitute", "dispense as written" or "medically necessary" or any statement by the prescriber that clearly indicates an intent to prevent substitution on the face of the prescription form.

F. This section applies to all prescriptions, including those presented by or on behalf of persons receiving state or federal assistance payments.

G. An employer or agent of an employer of a pharmacist shall not require the pharmacist to dispense any specific generic equivalent drug or interchangeable biological product or to substitute any specific generic equivalent drug or interchangeable biological product for a brand name drug or biological product against the professional judgment of the pharmacist or the order of the prescriber.

H. The liability of a pharmacist in substituting according to this section is no greater than that incurred in the filling of a generically written prescription. This subsection does not limit or diminish the responsibility for the strength, purity or quality of drugs provided in section 32-1963. The failure of a prescriber to specify that no substitution is authorized does not constitute evidence of negligence.

I. A pharmacist may not make a substitution pursuant to this section unless the manufacturer or distributor of the generic equivalent drug or interchangeable biological product has shown that:

1. All products dispensed have an expiration date on the original package.

2. The manufacturer or distributor maintains recall and return capabilities for unsafe or defective drugs or biological products.

J. The board shall maintain on its public website a link to the current list of each biological product determined by the United States food and drug administration to be an interchangeable biological product.

K. The labeling and oral notification requirements of this section do not apply to pharmacies serving patients in a health care institution as defined in section 36-401. However, in order for this exemption to apply to hospitals, the hospital must have a formulary to which all medical practitioners of that hospital have agreed and that is available for inspection by the board.

L. For the purposes of this section:

1. "Biological product" has the same meaning prescribed in 42 United States Code section 262.

2. "Brand name drug" means a drug with a proprietary name assigned to it by the manufacturer or distributor.

3. "Formulary" means a list of medicinal drugs.

4. "Generic equivalent" or "generically equivalent" means a drug that has an identical amount of the same active chemical ingredients in the same dosage form, that meets applicable standards of strength, quality and purity according to the United States pharmacopeia or other nationally recognized compendium and that, if administered in the same amounts, will provide comparable therapeutic effects. Generic equivalent or generically equivalent does not include a drug that is listed by the United States food and drug administration as having unresolved bioequivalence concerns according to the administration's most recent publication of approved drug products with therapeutic equivalence evaluations.

5. "Interchangeable biological product" means a biological product that either:

(a) The United States food and drug administration has licensed and determined meets the safety standards for determining interchangeability pursuant to 42 United States Code section 262(k)(4).

(b) Is determined to be therapeutically equivalent as set forth in the latest edition of the supplement to the United States food and drug administration's approved drug products with therapeutic equivalence evaluations.

§ 32-1964 Record of prescription orders; inspections; confidentiality

A. Every proprietor, manager or pharmacist in charge of a pharmacy shall keep in the pharmacy a book or file in which that person places the original of every prescription order of drugs, devices or replacement soft contact lenses that are compounded or dispensed at the pharmacy. This information shall be serially numbered, dated and filed in the order in which the drugs, devices or replacement soft contact lenses were compounded or dispensed. A prescription order shall be kept for at least seven years. The proprietor, manager or pharmacist shall produce this book or file in court or before any grand jury on lawful order. The book or file of original prescription orders is open for inspection at all times by the prescribing medical practitioner, the board and its agents and officers of the law in performance of their duties.

B. The board, by rule, shall permit pharmacies to maintain the book or file of all original prescription orders by means of electronic media or image of the original prescription order maintained in a retrievable format in a form that contains information the board requires to provide an adequate record of drugs, devices or replacement soft contact lenses compounded or dispensed.

C. The board, by rule, shall require a similar book or file for a hospital pharmacy in a form that contains information the board requires to provide an adequate record of drugs compounded or dispensed. A prescription order or medication order must be kept for at least seven years. The administrator, manager or pharmacist must produce this book or file in court or before any grand jury on lawful order. The book or file of original prescription orders or medication orders is open for inspection at all times by the prescribing medical practitioner, the board and its agents and officers of the law in performance of their duties.

D. A pharmacist, pharmacy permittee or pharmacist in charge shall comply with applicable state and federal privacy statutes and regulations when releasing patient prescription information.

§ 32-1965 Prohibited acts

The following acts or the causing of any thereof, in addition to any others so specified in this chapter, are prohibited:

1. The manufacture, sale, holding or offering for sale of any drug, device, poison, or hazardous substance that is adulterated or misbranded.

2. The adulteration or misbranding of any drug, device, poison, or hazardous substance.

3. The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a drug, device, poison, or hazardous substance, if such act is done while such article is held for sale and results in such article being adulterated or misbranded.

4. The manufacture, sale, holding or offering for sale of a counterfeit drug or forging, counterfeiting, simulating, or falsely representing or without proper authority using any mark, stamp, tag, label, or other identification device authorized or required by rules adopted under the provisions of this chapter, or of the federal act.

5. The using, on the labeling of any drug or device, or in any advertisement, relating to such drug or device, of any representation or suggestion that such drug or device complies with the provisions of this chapter.

6. In the case of a prescription-only drug or a controlled substance that requires a prescription order by state or federal law, the failure of the manufacturer, packer, or distributor to transmit, to any medical practitioner who makes a written request for information about such drug, true and correct copies of all printed matter included in any package in which that drug is distributed or other printed matter approved under the federal act.

7. Engaging in the practice of pharmacy without first having a current license in good standing issued by the board.

8. Making or offering to make a forged, counterfeit, altered or photocopied prescription or drug order for the purpose of obtaining prescription-only or controlled substance drugs.

§ 32-1966 Acts constituting adulteration of a drug or device

A drug or device shall be deemed to be adulterated:

1. If it consists in whole or in part of any filthy, putrid or decomposed substance.

2. If it has been produced, prepared, packed, or held under unsanitary conditions whereby it may have been contaminated with filth, or is not securely protected from dust, dirt, and, as far as may be necessary by all reasonable means, from all foreign or injurious contamination, or whereby it may have been rendered injurious to health.

3. If the methods used in, or the facilities or controls used for, its manufacture, processing, packing, or holding do not conform to or are not operated or administered in conformity with current good manufacturing practice to assure that such drug or device meets the requirements of this chapter as to safety and has the identity and strength, and meets the quality, which it is represented to possess.

4. If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health.

5. If:

(a) It bears or contains a color additive which is unsafe within the meaning of the federal act.

(b) It is a color additive, the intended use of which in or on drugs is for the purpose of coloring only, and is unsafe within the meaning of the federal act.

6. If it is a drug the name of which is recognized in an official compendium, and its strength differs from, or its quality or purity falls below, the standard set forth in such compendium. No drug defined in an official compendium shall be deemed to be adulterated under this paragraph because it differs from the standard of strength, quality, or purity set forth in such compendium, if its difference in strength, quality, or purity from such standard is plainly stated on its label.

7. If it is not subject to the provisions of paragraph 6 of this section and its strength differs from, or its purity or quality falls below that which it purports or is represented to possess.

8. If it is a drug or device to which any substance has been mixed or packed therewith so as to reduce its quality or strength, or to be substituted for it in whole or in part.

§ 32-1967 Acts constituting misbranding of a drug or device; exceptions; interpretation of misleading label; definition

A. A drug or device is misbranded:

1. If its labeling is false or misleading in any particular.

2. If in package form unless it bears a label containing both:

(a) The name and place of business of the manufacturer, packer or distributor.

(b) An accurate statement of the quantity of the contents in terms of weight, measure or numerical count.

3. If any word, statement or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed on the label or labeling. Compliance with the federal act shall be deemed compliance with this chapter except for compliance with paragraph 16 of this subsection.

4. If it is for use by humans and contains any quantity of the narcotic or hypnotic substance alpha-eucaine, barbituric acid, beta-eucaine, bromal, cannabis, carbromal, chloral, coca, cocaine, codeine, heroin, marijuana, morphine, opium, paraldehyde, peyote or sulfonmethane, or any chemical derivative of such substance, which derivative or other substance has been found to be habit-forming, unless its label bears the name and quantity or proportion of such substance or derivative.

5. If it is a drug unless its label bears, to the exclusion of any other nonproprietary name, both:

(a) The established name of the drug, if there is an established name.

(b) In case it is fabricated from two or more ingredients, the established name and quantity of each active ingredient, including the kind and quantity or proportion of any alcohol, and also including, whether active or not, the established name and quantity or proportion of any bromides, ether, chloroform, atropine, hyoscine, hyoscyamine, arsenic, digitalis, digitalis glycosides, mercury, strychnine or thyroid, or derivative or preparation of any such substances, provided that the requirements for stating the quantity of the active ingredients, other than those specifically named in this subdivision, apply only to prescription drugs.

6. Unless its labeling bears both:

(a) Adequate directions for use.

(b) Adequate warnings against use in those pathological conditions or by children where its use may be dangerous to health, or against unsafe dosage or methods or duration of administration or application, in a manner and form as are necessary for the protection of users.

7. If it is recognized in an official compendium, unless it is packed and labeled as prescribed in such compendium, provided that the method of packing may be modified with the consent of the board.

8. If it has been found by the board to be a drug or device liable to deterioration, unless it is packaged in that form and manner, and its label bears a statement of such precautions, as the rules issued by the board require as necessary for the protection of public health.

9. If its container is so made, formed or filled as to be misleading.

10. If it is an imitation of another drug or device.

11. If it is offered for sale under the name of another drug or device.

12. If it is dangerous to health when used in the dosage or manner or with the frequency or duration prescribed, recommended or suggested in the labeling of the drug or device.

13. If it is a color additive, the intended use of which in or on drugs or devices is for the purpose of coloring only, unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to such color additive in the federal act or board rule.

14. In the case of any prescription-only drug or controlled substance distributed or offered for sale in this state, unless the manufacturer, packer or distributor of such drug or substance includes in all advertisements and other printed matter with respect to that drug a true statement of:

(a) The established name.

(b) The formula showing quantitatively each ingredient.

(c) Other information in brief summary relating to side effects, contraindications or effectiveness as required in board rules or the federal act.

15. If a trademark, trade name or other identifying mark, imprint or device of another drug or device or any likeness of another drug or device has been placed on the drug or device or on its container with intent to defraud.

16. In the case of any prescription-only drug or controlled substance, if in final dosage form unless it bears a label containing both:

(a) The name and place of business of the manufacturer, and if different, the packer or distributor.

(b) An accurate statement of the quantity of the contents in terms of weight, measure or numerical count.

17. In the case of any foreign dangerous drug, if it is not approved by the United States food and drug administration or is obtained outside of the licensed supply chain regulated by the United States food and drug administration, the board or the department of health services. This paragraph does not apply to a foreign dangerous drug that is authorized for use by a state law or that is imported lawfully under the federal food, drug, and cosmetic act (21 United States Code section 301, et seq.) or pursuant to an announcement by the United States food and drug administration of the exercise of enforcement discretion for instances including clinical research purposes, drug shortages, development of countermeasures against chemical, biological, radiological and nuclear terrorism agents or pandemic influenza preparedness and response.

B. Drugs and devices that are to be processed, labeled or repacked at establishments other than those where originally processed or packed are exempt from any labeling or packaging requirements of this chapter, provided that such drugs and devices are being delivered, manufactured, processed, labeled, repacked or otherwise held in compliance with board rules or under the federal act.

C. If an article is alleged to be misbranded because the labeling is misleading, then in determining whether the labeling is misleading there shall be taken into account, among other things, not only representations made or suggested by statement, word, design, device or any combination of them, but also the extent to which the labeling fails to reveal facts material in the light of such representations, or material with respect to consequences that may result from the use of the article to which the labeling relates under the conditions of use prescribed in the labeling or under such conditions of use as are customary or usual.

D. A drug or device is not considered misbranded if it is either of the following:

1. Intended for use in pharmaceutical compounding by a licensed pharmacist, physician, drug manufacturer or distributor or registered outsourcing facility in compliance with the requirements of this chapter and the federal food, drug, and cosmetic act (21 United States Code section 321).

2. Mislabeled or incorrectly filled because of a filling error by a pharmacy or a pharmacist.

E. This section does not apply to any drug or device, whether or not approved by the United States food and drug administration, that is manufactured, packed or distributed for use in pharmaceutical compounding by a licensed pharmacist, physician, drug manufacturer or distributor or registered outsourcing facility in compliance with the requirements of this chapter and the federal food, drug, and cosmetic act (21 United States Code section 321).

F. For the purposes of this section, "dangerous drug" means any drug that is unsafe for self-use in humans or animals and includes:

1. Any drug that bears the legend: "Caution: federal law prohibits dispensing without prescription", "Rx only", or words of similar import.

2. Any device that bears the statement: "Caution: federal law restricts this device to sale by or on the order of a ____", "Rx only", or words of similar import, the blank to be filled in with the designation of the practitioner licensed to use or order use of the device.

3. Any other drug or device that by federal or state law can be lawfully dispensed only on prescription.

§ 32-1968 Dispensing prescription-only drug; prescription orders; refills; labels; misbranding; dispensing soft contact lenses; opioid antagonists

A. A prescription-only drug shall be dispensed only under one of the following conditions:

1. By a medical practitioner in conformance with section 32-1921.

2. On a written prescription order bearing the prescribing medical practitioner's manual signature.

3. On an electronically transmitted prescription order containing the prescribing medical practitioner's electronic or digital signature.

4. On a written prescription order generated from electronic media containing the prescribing medical practitioner's electronic or manual signature. A prescription order that contains only an electronic signature must be applied to paper that uses security features that will ensure the prescription order is not subject to any form of copying or alteration.

5. On an oral prescription order that is reduced promptly to writing and filed by the pharmacist.

6. By refilling any written, electronically transmitted or oral prescription order if a refill is authorized by the prescriber either in the original prescription order, by an electronically transmitted refill order that is documented promptly and filed by the pharmacist or by an oral refill order that is documented promptly and filed by the pharmacist.

7. On a prescription order that the prescribing medical practitioner or the prescribing medical practitioner's agent transmits by fax or e-mail.

8. On a prescription order that the patient transmits by fax or by e-mail if the patient presents a written prescription order bearing the prescribing medical practitioner's manual signature when the prescription-only drug is picked up at the pharmacy.

B. A prescription order shall not be refilled if it is either:

1. Ordered by the prescriber not to be refilled.

2. More than one year since it was originally ordered.

C. A prescription order shall contain the date it was issued, the name and address of the person for whom or owner of the animal for which the drug is ordered, refills authorized, if any, the legibly printed name, address and telephone number of the prescribing medical practitioner, the name, strength, dosage form and quantity of the drug ordered and directions for its use.

D. Any drug dispensed in accordance with subsection A of this section is exempt from the requirements of section 32-1967, except section 32-1967, subsection A, paragraphs 1, 10 and 11 and the packaging requirements of section 32-1967, subsection A, paragraphs 7 and 8, if the drug container bears a label containing the name and address of the dispenser, the serial number, the date of dispensing, the name of the prescriber, the name of the patient, or, if an animal, the name of the owner of the animal and the species of the animal, directions for use and cautionary statements, if any, contained in the order. This exemption does not apply to any drug dispensed in the course of the conduct of a business of dispensing drugs pursuant to diagnosis by mail or the internet or to a drug dispensed in violation of subsection A of this section.

E. The board by rule also may require additional information on the label of prescription medication that the board believes to be necessary for the best interest of the public's health and welfare.

F. A prescription-only drug or a controlled substance that requires a prescription order is deemed to be misbranded if, at any time before dispensing, its label fails to bear the statement "Rx only". A drug to which subsection A of this section does not apply is deemed to be misbranded if, at any time before dispensing, its label bears the caution statement quoted in this subsection.

G. A pharmacist may fill a prescription order for soft contact lenses only as provided in this chapter.

H. A pharmacist may dispense naloxone hydrochloride or any other opioid antagonist that is approved by the United States food and drug administration on the receipt of a standing order pursuant to section 36-2266. Naloxone hydrochloride or any other opioid antagonist that is dispensed in accordance with subsection A of this section is exempt from the requirements of section 32-1967.

§ 32-1969 Filling foreign prescription orders; records; exception

A. This chapter does not prohibit a pharmacist or an intern under a pharmacist's supervision from filling a new written prescription order for a drug or device issued by a medical practitioner licensed by the appropriate licensing board of a foreign country.

B. The proprietor, manager or pharmacist in charge of a pharmacy shall keep a separate record of prescriptions filled pursuant to this section.

C. A pharmacist or intern shall not fill a prescription order issued by a medical practitioner licensed by the appropriate licensing board of a foreign country for a controlled substance as defined pursuant to title 36, chapter 27, article 2 or the rules adopted pursuant to title 36, chapter 27, article 2.

§ 32-1970 Collaborative practice agreements; requirements; rules; definitions

A. A pharmacist who is licensed pursuant to this chapter may enter into a collaborative practice agreement with a provider pursuant to this section to initiate, monitor and modify drug therapy or provide disease management assistance. The collaborative practice agreement may be between one or more pharmacists and one or more providers. The collaborative practice agreement shall:

1. Outline the duties related to drug therapy and disease management that the provider is delegating to the pharmacist to perform, including drug therapy that the pharmacist may initiate, monitor and modify and laboratory tests that the pharmacist may order, and the eligible group of patients that may be treated under the collaborative practice agreement.

2. Specify, at a minimum, the conditions to be managed by the pharmacist through disease management and drug therapy management, the circumstances for which the pharmacist must notify the provider and any documentation or recordkeeping requirements.

3. Specify that the pharmacist must follow the written drug therapy and disease management guidelines provided by the provider and may provide drug therapy and disease management services only pursuant to those guidelines. The guidelines shall specify, at a minimum, the specific drug, drugs or drug classes and the conditions to be managed by the pharmacist, the conditions and events for which the pharmacist must notify the provider and the laboratory tests the pharmacist may order.

B. A provider who enters into a collaborative practice agreement under this section must have a previously established provider-patient relationship with a patient in order for that patient to be a part of the eligible group of patients who may be included under the collaborative practice agreement.

C. A licensee who violates this section commits an act of unprofessional conduct.

D. A pharmacist is responsible for the pharmacist's negligent acts that are the result of the clinical decisions made pursuant to the collaborative practice agreement. This subsection does not limit a provider's liability for negligent acts that are not related to a pharmacist's change of medication pursuant to the collaborative practice agreement.

E. The pharmacist shall maintain a copy of the collaborative practice agreement and make the collaborative practice agreement available to the board on request.

F. The Arizona state board of pharmacy, the Arizona medical board, the Arizona board of osteopathic examiners in medicine and surgery and the Arizona state board of nursing may adopt rules relating to collaborative practice agreements.

G. For the purposes of this section:

1. "Collaborative practice agreement" means an agreement between a pharmacist and a provider that outlines the drug therapy and disease management services, including initiating, monitoring and modifying prescription drug and laboratory test orders, that are authorized by the provider and delegated to the pharmacist for the purposes of drug therapy management or disease management based on the pharmacist's skills or training.

2. Initiate, monitor and modify does not include a pharmacist's selection of drug products that are not prescribed by the provider unless the selection of specific drug products is authorized by the collaborative practice agreement.

3. "Provider" means a physician who is licensed pursuant to chapter 13 or 17 of this title, a registered nurse practitioner or certified nurse midwife who is licensed pursuant to chapter 15 of this title or a physician assistant who is licensed pursuant to chapter 25 of the title.

§ 32-1971 Compounding pharmacies; certain medications; requirements; definitions

A. Chronically ill patients and terminally ill patients have the right to determine, with the assistance and guidance of their health care providers, individual courses of treatment through the use of medications and treatments obtained from a compounding pharmacy.

B. Compounding pharmacies that are licensed in this state shall have access to active pharmaceutical ingredients for use in compounding that meet United States pharmacopeia monographs, if the active pharmaceutical ingredient is prepared for use by a United States food and drug administration-registered active pharmaceutical ingredient manufacturer or packager, is shipped into this state in compliance with state law and arrives with a certificate of analysis detailing quality specifications, including any medications, dietary supplements and amino acids that are already in use by compounding pharmacies in this state, in order to provide chronically ill patients and terminally ill patients with the prescribed individual course of treatment.

C. Subsection B of this section does not apply if the active pharmaceutical ingredient is deemed unsafe for compounding by the federal food and drug administration or is placed on the interim 503A category II bulk drug substance list. Compounding pharmacies may use substances placed on the interim 503A category III bulk drug substance list only if the substance meets the requirements of this section.

D. This section does not allow any treatment or use of medication that is intended to cause the death of the patient.

E. For the purposes of this section:

1. "Chronically ill patient" means a patient whose physician has diagnosed the patient as having a long-term disease or condition that if left untreated may cause major irreversible morbidity and who might benefit from individualized or specialized medication that is not commercially available.

2. "Compounding pharmacy" means a pharmacy that is classified as a 503A pharmacy by the United States food and drug administration.

3. "Monographs" means quality standards for prescription medicines and dietary supplements that articulate the quality expectations for a medicine or dietary supplement, including its identity, strength, purity and performance.

4. "Terminally ill patient" means a patient whose physician has diagnosed the patient with a disease that, taking into account the patient's medical circumstances, will cause the patient's death in a reasonably foreseeable time.

§ 32-1972 Poison or hazardous substances; misbranding and labeling; prohibitions; exemption

A. A poison or hazardous substance shall be misbranded unless the label bears, and accompanied information that it includes or bears, any directions for use which states conspicuously:

1. The name and address of the manufacturer or seller.

2. The common or usual name or the chemical name, if there is no common or usual name, of the poison or hazardous substance or of each component which contributes substantially to its poisonous or hazardous property, unless the board by rule permits or requires the use of a recognized generic name.

3. The signal words "poison" and "danger" and the skull and crossbones symbol on poisons or hazardous substances which are highly toxic.

4. The signal word "danger" on poisons or hazardous substances that are corrosive.

5. The signal word "warning" or "caution" on all other poisons or hazardous substances.

6. An affirmative statement as to the principal poisonous property, such as "flammable", "vapor harmful", "causes burns", "absorbed through skin", or similar wording descriptive of the poison or hazardous substance.

7. Precautionary measures describing the action to be followed or avoided.

8. Instruction, when necessary or appropriate, for first-aid treatment.

9. Instructions for handling and storage of packages which require special care in handling or storage.

10. The statement "keep out of reach of children" or its practical equivalent, or, if the poison or hazardous substance is intended for use by children, adequate directions for the protection of children from the poison or hazardous substance.

11. Directions for using the poison or hazardous substance.

B. A poison or hazardous substance is also misbranded by the reuse of a food, drug or cosmetic container, or in a container which, though not reused, is identifiable as a food, drug or cosmetic container by its labeling or by other identification, as a container for the poison or hazardous substance.

C. Any statement required on the label of a poison or hazardous substance under subsection A shall be:

1. Located prominently.

2. In the English language.

3. In conspicuous and legible type in contrast by typography, layout, or color with other printed matter on the label.

D. If the board finds that the requirements of subsections A and B are not adequate for the protection of the public health and safety in view of the special hazard presented by any particular poison or hazardous substance, it may establish by rule such reasonable variations or additional label requirements as it finds necessary, and any such poison or hazardous substance intended, or packaged in a form suitable, for use in the household or by children which fails to bear a label in accordance with such rules shall be deemed to be a misbranded poison or hazardous substance.

E. If the board finds that, because of the size of the package involved or because of the minor hazard presented by the poison or hazardous substance contained therein, or for other good and sufficient reasons, full compliance with the labeling requirements otherwise applicable under this section is impracticable or is not necessary for the adequate protection of the public health and safety, the board shall adopt rules exempting such poisons or hazardous substances from these requirements to the extent they determine to be consistent with adequate protection of the public health and safety.

F. If the board finds that the poisonous or hazardous nature of a poison or hazardous substance subject to this section is such that the labeling adequate to protect the public health and safety cannot be devised, or the poison or hazardous substance presents an imminent danger to the public health and safety, the board by rule may restrict the sale of such poison or hazardous substance or declare it to be banned and require its removal from commerce.

G. The board shall conform the rules adopted under this section as far as practicable with the regulations established pursuant to the federal hazardous substances act.

§ 32-1973 Pharmacies; quality assurance

A. As prescribed by the board by rule, each pharmacy shall implement or participate in a continuous quality assurance program to review pharmacy procedures in order to identify methods for addressing pharmacy medication errors. The rules shall prescribe requirements to document compliance and any other provisions necessary for the administration of the program.

B. Records that are generated as a component of a pharmacy's ongoing quality assurance program and that are maintained for that program are peer review documents and are not subject to subpoena or discovery in an arbitration or civil proceeding. This subsection does not prohibit a patient from accessing the patient's prescription records or affect the discoverability of any records that are not generated only as a component of a pharmacy's ongoing quality assurance program and maintained only for that program.

C. A pharmacy meets the requirements of this section if it holds a current general, special or rural general hospital license from the department of health services and is any of the following:

1. Certified by the centers for medicare and medicaid services to participate in the medicare or medicaid programs.

2. Accredited by the joint commission on the accreditation of health care organizations.

3. Accredited by the American osteopathic association.

§ 32-1974 Pharmacists; administration of immunizations, vaccines and emergency medications; authorization; reporting requirements; advisory committee; definition

A. Except as prescribed pursuant to subsection H of this section, a pharmacist who is licensed pursuant to this chapter and who meets the requirements of this section may order and administer all of the following:

1. Immunizations or vaccines recommended by the United States centers for disease control and prevention's advisory committee on immunization practices to a person who is at least six years of age.

2. Immunizations or vaccines recommended by the United States centers for disease control and prevention's advisory committee on immunization practices for international travel to a person who is at least eighteen years of age.

3. Immunizations or vaccines for influenza recommended by the United States centers for disease control and prevention's advisory committee on immunization practices to a person who is at least three years of age.

B. Except as prescribed in subsection A of this section, a pharmacist who is licensed pursuant to this chapter and who meets the requirements of this section may administer immunizations and vaccines to a person who is at least three years of age only pursuant to a prescription order or under a collaborative practice agreement.

C. A pharmacist who wishes to order and administer immunizations and vaccines pursuant to this section must update the pharmacist's online profile with the board indicating that the pharmacist is an active immunizer who meets requirements as prescribed by the board by rule.

D. A pharmacist who is authorized to order and administer immunizations and vaccines pursuant to this section may order and administer:

1. Emergency medication to manage an acute allergic reaction to an immunization, vaccine or medication in accordance with guidelines from the United States centers for disease control and prevention's advisory committee on immunization practices for adults and the American academy of pediatrics for minors.

2. Immunizations or vaccines to any person regardless of age during a public health emergency response of this state pursuant to section 36-787.

E. A pharmacist who administers an immunization, vaccine or emergency medication pursuant to this section must:

1. Notify the person's identified primary care provider or physician within forty-eight hours after administering the immunization, vaccine or emergency medication and as prescribed by the board by rule. The pharmacist shall make a reasonable effort to identify the person's primary care provider or physician by one or more of the following methods:

(a) Checking the Arizona state immunization information system established by the department of health services.

(b) Checking pharmacy records.

(c) Requesting the information from the person or, in the case of a minor, the person's parent or guardian.

2. Report information to the Arizona state immunization information system established by the department of health services.

3. Maintain a record of the immunization pursuant to title 12, chapter 13, article 7.1 and as prescribed by the board by rule.

4. Notify the person's identified primary care provider or physician, within twenty-four hours after occurrence, any adverse reaction that is reported to or witnessed by the pharmacist and that is listed by the vaccine manufacturer as a contraindication to further doses of the vaccine.

5. Notify the vaccine adverse event reporting system in accordance with the United States centers for disease control and prevention's advisory committee recommendations.

6. Provide vaccine information materials to those requesting immunizations or vaccines and, for persons under eighteen years of age, provide educational materials to the person's parent or guardian about the importance of pediatric preventive health care visits as recommended by the American academy of pediatrics.

7. Follow the standard operating procedures adopted by the pharmacy or other institution where the immunization, vaccine or emergency medication is administered that are based on the vaccine administration protocols and immunization practices published in the United States centers for disease control and prevention's morbidity and mortality weekly report. The standard operating procedures shall include all of the following:

(a) Patient screening requirements for relevant health condition information before administering a vaccine.

(b) A requirement to review the vaccine information, the Arizona state immunization information system and any other patient information on record to determine the person's past immunizations and adverse reactions before administering a vaccine.

(c) Emergency management policies and procedures.

F. This section does not establish a cause of action against a patient's primary care provider or physician for any adverse reaction, complication or negative outcome arising from the administration of any immunization, vaccine or emergency medication by a pharmacist to the patient pursuant to this section if it is administered without a prescription order written by the patient's primary care provider or physician.

G. The board shall adopt rules for ordering and administering vaccines, immunizations and emergency medications pursuant to this section regarding:

1. Recordkeeping and reporting requirements.

2. Requirements and qualifications for pharmacist authorization pursuant to this section.

H. The department of health services, by rule, shall establish and maintain a list of immunizations or vaccines that may be administered by a pharmacist only pursuant to a prescription order. In adopting and maintaining this list, the department is exempt from the rulemaking requirements of title 41, chapter 6. The list shall include those immunizations or vaccines recommended by the United States centers for disease control and prevention's health information for international travel that have adverse reactions that could cause significant harm to a patient's health. A pharmacist may not administer immunizations or vaccines without a prescription order pursuant to this section before the department has established the list pursuant to this subsection. The board may not authorize a pharmacist to administer new immunizations or vaccines without a prescription order pursuant to this section until the department reviews the new immunizations and vaccines to determine if they should be added to the list established pursuant to this subsection.

I. The board may appoint an advisory committee to assist the board in adopting and amending rules and developing protocols relating to ordering and administering immunizations, vaccines and emergency medications and training requirements.

J. A pharmacy intern who is trained to administer immunizations and vaccines pursuant to this section may do so only in the presence and under the supervision of a pharmacist who is authorized as prescribed in this section.

K. This section does not prevent a pharmacist who administers an immunization or vaccine from participating in the federal vaccines for children program.

L. A pharmacist may not administer an immunization or vaccine to a minor without the consent of the minor's parent or guardian.

M. For the purposes of this section, "emergency medication" means emergency epinephrine, corticosteroids, albuterol, oxygen and antihistamines in accordance with guidelines from the United States centers for disease control and prevention's advisory committee on immunization practices for adults and the American academy of pediatrics for minors.

§ 32-1974.01 Pharmacists; administration of emergency medications; authorization; notification; definition

A. A pharmacist who is authorized to order and administer any medication pursuant to this chapter may order and administer emergency medication to manage an acute allergic reaction to the medication that was administered at the pharmacy.

B. A pharmacist who administers emergency medication pursuant to this section shall:

1. Notify the person's identified primary care provider or physician within forty-eight hours after administering the emergency medication and as prescribed by the board by rule. The pharmacist shall make a reasonable effort to identify the person's primary care provider or physician by one or more of the following methods:

(a) Checking pharmacy records.

(b) Requesting the information from the person or, in the case of a minor, the person's parent or guardian.

2. Follow the standard operating procedures adopted by the pharmacy or other institution where the emergency medication is administered, including any emergency management policies and procedures.

C. This section does not establish a cause of action against a patient's primary care provider or physician for any adverse reaction, complication or negative outcome arising from the administration of any emergency medication by a pharmacist to the patient pursuant to this section if the emergency medication is administered without a prescription order written by the patient's primary care provider or physician.

D. For the purposes of this section, "emergency medication" means emergency epinephrine, corticosteroids, albuterol, oxygen and antihistamines.

§ 32-1975 Legend drug products; listing; code identification; exemption; definitions

A. A legend drug product in finished solid dosage form shall not be manufactured or commercially distributed within this state unless it is clearly or prominently marked or imprinted with a code imprint identifying the drug product and the manufacturer or distributor of the drug.

B. All manufacturers or distributors of legend drugs in solid dosage form shall make available on request to the board a listing of all such legend drugs identifying by code imprint the manufacturer or distributor and the specific type of drug. The listing shall at all times be kept current by all manufacturers and distributors subject to this section.

C. The board may grant exemptions from the requirements of this section on application of any drug manufacturer or distributor showing size, physical characteristics or other unique characteristics that render the application of a code imprint to a legend drug subject to this section impractical or impossible. Any exemption granted by the board shall be included by the manufacturer or distributor in the listing required by subsection B of this section, describing the physical characteristics and type of drug to which the exemption relates.

D. This section does not apply to drug products compounded by a pharmacist licensed under section 32-1924 in a pharmacy operating under a permit issued by the board.

E. For the purposes of this section:

1. "Code imprint" means a series of letters or numbers assigned by the manufacturer or distributor to a specific drug or marks or monograms unique to the manufacturer or distributor of the drug, or both.

2. "Distributor" means a person who distributes for resale a drug in solid dosage form under that person's own label even if that person is not the actual manufacturer of the drug.

3. "Legend drug" means any drug defined by section 503(b) of the federal food, drug and cosmetic act and under which definition its label is required to bear the statement "Rx only".

4. "Solid dosage form" means capsules or tablets intended for oral use.

§ 32-1976 Dispensing replacement soft contact lenses; prescription

A. A prescription order for replacement soft contact lenses may be dispensed under the following conditions:

1. The prescription order shall be in the form required by this chapter and shall include the name of the prescribing physician or optometrist.

2. The prescription order contains the date of issuance.

3. The prescription order for contact lenses includes the lens brand name, type, tint and all other specifications necessary to accurately dispense the prescription.

B. The prescription shall be dispensed with the exact lenses prescribed and no substitutions shall be made. The expiration date of the prescription shall be the earlier of the expiration date provided by the prescribing physician or optometrist or one year after the date of issuance. A refill of a prescription that is within sixty days of its expiration date shall be filled with no more than the sufficient quantity of replacement soft contact lenses needed through the expiration date.

C. The prescription shall be dispensed with a written notice containing the following wording or its substantial equivalent:

Warning: If you are having any unexplained eye discomfort, watering, vision change or redness, remove your lenses immediately and consult your eye care practitioner before wearing your lenses again.

D. Any advertisement by a pharmacy or pharmacist for replacement soft contact lenses shall include all charges associated with the purchase of replacement soft contact lenses from the pharmacy or pharmacist.

§ 32-1977 Sale of methamphetamine precursors by a pharmacy permittee; electronic sales tracking system; violation; classification; state preemption

A. A permittee under this chapter shall not sell to the same person, and a person shall not purchase, products containing more than three and six-tenths grams per day or more than nine grams per thirty-day period of ephedrine or pseudoephedrine base, or their salts, isomers or salts of isomers. These limits apply to the total amount of base ephedrine and pseudoephedrine contained in the products and not to the overall weight of the products.

B. The permittee must keep nonprescription products containing pseudoephedrine or ephedrine behind the counter or in a locked case where a customer does not have direct access.

C. The permittee shall require a person purchasing a nonprescription product that contains pseudoephedrine or ephedrine to present valid government-issued photo identification at the point of sale. The permittee shall record all of the following:

1. The name and address of the purchaser.

2. The name and quantity of product purchased.

3. The date and time of purchase.

4. Purchaser identification type and number.

D. Before completing a sale pursuant to this section, a permittee must use an electronic sales tracking system and electronically submit the required information to the national precursor log exchange administered by the national association of drug diversion investigators if the system is available to permittees without a charge for access. For the purposes of this subsection, "available to permittees without a charge for access":

1. Includes:

(a) Access to the web-based electronic sales tracking software, including inputting and retrieving data free of charge.

(b) Training free of charge.

(c) Technical support to integrate to point of sale vendors without a charge, if necessary.

2. Does not include:

(a) Costs relating to required internet access.

(b) Optional hardware that a pharmacy may choose to purchase for workflow purposes.

(c) Other equipment.

E. If a permittee that sells a nonprescription product containing pseudoephedrine or ephedrine experiences mechanical or electronic failure of the electronic sales tracking system and is unable to comply with the electronic sales tracking requirements of this section, the permittee must maintain a written log or an alternative electronic recordkeeping mechanism until the permittee is able to comply with the electronic sales tracking system requirements. A permittee that does not have internet access to the electronic sales tracking system is compliant with the requirements of this section if the retailer maintains a written log or an alternative electronic recordkeeping mechanism.

F. The national association of drug diversion investigators shall forward state transaction records in the national precursor log exchange to the board of pharmacy each week and provide real-time access to the national precursor log exchange information through the national precursor log exchange online portal to law enforcement in this state as authorized by the board of pharmacy.

G. The system prescribed in this section must be capable of generating a stop sale alert notification that completing the sale would result in the permittee or purchaser violating the quantity limits prescribed in this section. The permittee may not complete the sale if the system generates a stop sale alert. The electronic sales tracking system prescribed in this section must contain an override function that may be used by dispensers of ephedrine or pseudoephedrine who have a reasonable fear of imminent bodily harm if they do not complete a sale. The system must log each instance that a permittee uses the override function.

H. A person who violates this section is guilty of a class 3 misdemeanor, punishable by fine only.

I. This section does not apply to a person who obtains the product pursuant to a valid prescription order.

J. The reporting of sales of ephedrine or pseudoephedrine products is of statewide concern. The regulation of sales pursuant to this section is not subject to further regulation by a county, city, town or other political subdivision of this state.

§ 32-1978 Sale of dextromethorphan; age requirement; exception; violation; civil penalty; definitions

A. It is prohibited for:

1. Any commercial entity to knowingly or wilfully sell or trade a finished drug product containing any quantity of dextromethorphan to a person who is under eighteen years of age.

2. Any person who is under eighteen years of age to purchase a finished drug product containing any quantity of dextromethorphan.

3. Any person to possess, receive or distribute unfinished dextromethorphan, unless the person is registered pursuant to the federal food, drug, and cosmetic act or is appropriately licensed with the board.

B. A person making a retail sale of a finished drug product containing any quantity of dextromethorphan must require and obtain proof of age from the purchaser before completing the sale, unless the person making the sale reasonably presumes the purchaser to be at least twenty-five years of age based on the purchaser's outward appearance.

C. Subsection A of this section does not apply to common carriers that possess, receive or distribute unfinished dextromethorphan for purposes of distributing such unfinished dextromethorphan between persons that are registered under section 510 of the federal food, drug, and cosmetic act or that are appropriately licensed with the board.

D. This section does not impose any compliance requirement on a retail entity other than manually obtaining and verifying proof of age as a condition of sale, including placement of products in a specific place within a store, other restrictions on a consumer's direct access to finished drug products or the maintenance of transaction records.

E. A person who sells or trades a finished drug product containing any quantity of dextromethorphan to a person who is under eighteen years of age shall receive a warning for a first offense and shall pay a civil penalty of fifty dollars for a second offense, unless the person provides documentation that there is an employee training program in place.

F. This section does not apply to a medication containing dextromethorphan that is sold pursuant to a valid prescription.

G. For the purposes of this section:

1. "Common carrier" means any person that holds itself out to the general public as a provider for hire of the transportation of merchandise, whether or not the person actually operates the vehicle by which the transportation is provided within, to or from the United States.

2. "Finished drug product" means a drug that is legally marketed under the federal food, drug, and cosmetic act and that is in finished dosage form.

3. "Unfinished dextromethorphan" means dextromethorphan in any form, compound, mixture or preparation that is not a finished drug product.

§ 32-1979 Pharmacists; dispensing opioid antagonists; immunity

A. A pharmacist may dispense, pursuant to a standing order issued pursuant to section 36-2266, naloxone hydrochloride or any other opioid antagonist that is approved by the United States food and drug administration for a person who is at risk of experiencing an opioid-related overdose or to a family member or community member who is in a position to assist that person.

B. A pharmacist who dispenses naloxone hydrochloride or any other opioid antagonist pursuant to subsection A of this section shall instruct the individual to whom the opioid antagonist is dispensed to summon emergency services as soon as practicable after administering the opioid antagonist.

C. This section does not affect the authority of a pharmacist to fill or refill a prescription for naloxone hydrochloride or any other opioid antagonist that is approved by the United States food and drug administration.

D. A pharmacist who dispenses an opioid antagonist pursuant to this section is immune from professional liability and criminal prosecution for any decision made, act or omission or injury that results from that act if the pharmacist acts with reasonable care and in good faith, except in cases of wanton or wilful neglect.

§ 32-1979.01 Self-administered hormonal contraceptives; requirements; rules; immunity; definition

A. A pharmacist may dispense a self-administered hormonal contraceptive to a patient who is at least eighteen years of age pursuant to a standing prescription drug order made in accordance with subsection B of this section and without any other patient-specific prescription drug order.

B. A prescriber who is licensed to prescribe a self-administered hormonal contraceptive, including a person acting in the prescriber's capacity as an employee of the department of health services or a county health department, may issue a standing prescription drug order authorizing the dispensing of a self-administered hormonal contraceptive. This subsection does not create a duty to act or standard of care for an employee of the department of health services to issue a standing order for a hormonal contraceptive.

C. The board, in conjunction with the department of health services and in consultation with a national professional organization specializing in obstetrics and gynecology, shall adopt rules to establish standard procedures for pharmacists to dispense self-administered hormonal contraceptives pursuant to this section. The standard procedures shall require a pharmacist to do both of the following:

1. Obtain a completed nationally recognized self-screening risk assessment from each patient before dispensing the self-administered hormonal contraceptive to the patient.

2. Provide the patient with information about the self-administered hormonal contraceptive that is dispensed to the patient.

D. A pharmacist or prescriber acting reasonably and in good faith in dispensing or prescribing a self-administered hormonal contraceptive pursuant to this section is not liable for any civil damages for acts or omissions resulting from dispensing that self-administered hormonal contraceptive.

E. All state and federal laws governing insurance coverage of contraceptive drugs, devices, products and services apply to self-administered hormonal contraceptives that are prescribed and dispensed pursuant to this section.

F. This section does not apply to a valid patient-specific prescription for a hormonal contraceptive that is issued by an authorized prescriber and dispensed by a pharmacist pursuant to that valid prescription.

G. For the purposes of this section:

1. "Primary care provider" means a physician who is licensed pursuant to chapter 13, 14 or 17 of this title, a nurse practitioner who is licensed pursuant to chapter 15 of this title or a physician assistant who is licensed pursuant to chapter 25 of this title.

2. "Self-administered hormonal contraceptive":

(a) Means a self-administered hormonal contraceptive that is approved by the United States food and drug administration to prevent pregnancy.

(b) Includes an oral hormonal contraceptive, a hormonal contraceptive vaginal ring and a hormonal contraceptive patch.

§ 32-1979.02 Oral fluoride varnish; prescription and administration authority; requirements

A. A pharmacist who is licensed pursuant to this chapter and who meets the requirements of this section may prescribe and administer oral fluoride varnish.

B. A pharmacist who wishes to administer oral fluoride varnish pursuant to this section shall successfully complete a course of training accredited by the accreditation council for pharmacy education on the use of a caries risk assessment and oral fluoride varnish application, or other board-approved training that complies with American dental association guidelines.

C. A pharmacist who administers oral fluoride varnish pursuant to this section shall do all of the following:

1. Perform a caries risk assessment with each patient and make any necessary referrals to a dentist or physician for moderate or high-risk patients within five business days.

2. Provide each patient with a fluoride record card to be shared with other providers to track fluoride treatments.

3. Inform each patient that fluoride varnish is not sufficient dental care and encourage each patient to see a dentist on a regular basis.

4. Make and keep records for at least one year following the administration of oral fluoride varnish.

D. A pharmacist may not give or receive, either directly or indirectly, a payment, kickback, rebate, bonus or other remuneration for a referral to a dentist or physician pursuant to subsection C of this section.

§ 32-1979.03 Tobacco cessation drug therapies; prescription authority; requirements; definition

A. A pharmacist who is licensed pursuant to this chapter and who meets the requirements of this section may prescribe and dispense tobacco cessation drug therapies to a qualified patient. Prescriptive authority is limited to nicotine-replacement tobacco cessation drug therapies, including prescription and nonprescription therapies.

B. A pharmacist who wishes to prescribe and dispense tobacco cessation drug therapies pursuant to this section shall successfully complete a course of training accredited by the accreditation council for pharmacy education in the subject area of tobacco cessation and successfully complete two hours of accreditation council for pharmacy education accredited tobacco cessation continuing education programs on license renewal. The course of training shall include all of the following:

1. Epidemiology and health consequences of tobacco-containing products.

2. Biological, psychological and sociocultural components of tobacco dependence.

3. Assessment of a patient's willingness to quit.

4. Development of a quit plan.

5. Relapse prevention strategies.

6. Approved medications used for nicotine addiction and the effectiveness of current drug therapies for smoking cessation.

7. Nonpharmacological and behavioral interventions.

C. A pharmacist who prescribes and dispenses prescription nicotine-replacement tobacco cessation drug therapies pursuant to this section shall:

1. Notify the qualified patient's designated primary care provider within seventy-two hours after the medication is prescribed.

2. Keep records that include the qualified patient's initial assessment information, the education provided and the medication plan, and any drug therapies prescribed. The records shall be made available to the qualified patient's designated primary care provider on request.

D. This section does not apply to pharmacists who are either:

1. Filling or refilling prescriptions for tobacco cessation products written by another provider.

2. Recommending nonprescription tobacco cessation therapies to a patient without a prescription.

E. For the purposes of this section, "qualified patient" means a patient who:

1. Is at least eighteen years of age.

2. Is enrolled in a structured tobacco cessation program consisting of an initial evaluation and appropriate follow-up visits with the pharmacist or primary care provider if prescribing a prescription nicotine replacement.

3. Has been educated on symptoms of nicotine toxicity and when to seek medical treatment.

§ 32-1980 Virtual manufacturers; oversight and contracting requirements

A. A virtual manufacturer located in this state or located in another jurisdiction that is responsible for the shipment of prescription drugs or devices into this state shall make professionally reasonable efforts to ensure that the United States food and drug administration registered manufacturing entity for the physical manufacture of a prescription drug or prescription device complies with current good manufacturing practices as described in 21 Code of Federal Regulations part 210, 211, 212, 314, 808, 812 or 820, as applicable.

B. A virtual manufacturer of prescription drugs shall contract with a drug manufacturer that is permitted by this state.

Article 3.1 Regulation of Full Service Wholesale Permittees

§ 32-1981 Definitions

In this article, unless the context otherwise requires:

1. "Chain pharmacy warehouse" means a physical location for prescription-only drugs that acts as a central warehouse and that performs intracompany sales or transfers of the prescription-only drugs to a group of pharmacies that are under common ownership or control. A chain pharmacy warehouse is not limited to the distribution of prescription-only drugs under this article.

2. "Company under common ownership" has the same meaning as affiliated group as defined in 26 United States Code section 1504.

3. "Intracompany transaction" means any sale, transfer or trade between a division, subsidiary, parent or affiliated or related company under the common ownership of a person.

4. "Normal distribution channel" means the chain of custody for a prescription-only drug that begins with the delivery of the drug by a manufacturer to a wholesale distributor who then delivers the drug to a pharmacy or a practitioner for final receipt by a patient. Normal distribution channel includes the receipt of a prescription-only drug by a common carrier or other delivery service that delivers the drug at the direction of a manufacturer, full service wholesale permittee or pharmacy and that does not purchase, sell, trade or take title to any prescription-only drug.

5. "Wholesale distribution" means distribution of a drug to a person other than a consumer or patient. Wholesale distribution does not include:

(a) Any transaction or transfer between any division, subsidiary, parent or affiliated or related company under common ownership and control of a corporate entity.

(b) Selling, purchasing, distributing, transferring or trading a drug or offering to sell, purchase, distribute, transfer or trade a drug for emergency medical reasons. For the purposes of this subdivision, "emergency medical reasons" includes transferring a prescription drug by a community pharmacy or hospital pharmacy to another community pharmacy or hospital pharmacy to alleviate a temporary shortage.

(c) Drug returns if conducted by a hospital, health care entity, retail pharmacy or charitable institution in accordance with 21 Code of Federal Regulations section 203.23.

(d) The sale of prescription drugs by a pharmacy, not to exceed five percent of the pharmacy's gross sales, to practitioners for office use.

(e) Dispensing by a retail pharmacy of prescription drugs to a patient or patient's agent pursuant to the lawful order of a practitioner.

(f) Distributing a drug sample by a manufacturer's representative.

(g) Selling, purchasing or trading blood or blood components intended for transfusion.

§ 32-1982 Full-service wholesale permittees; bonds; designated representatives; fingerprinting requirements

A. A full-service wholesale permittee that engages in the wholesale distribution of prescription-only drugs into, within or from this state must maintain a bond as required by federal law and have a designated representative. If the full-service wholesale permittee changes its designated representative, the new designated representative must possess and submit a valid fingerprint clearance card before the change in representation is made.

B. The designated representative of a full-service wholesale permittee must:

1. Be at least twenty-one years of age.

2. Be employed by the full-service wholesale permittee in a managerial level position.

3. Be actively involved in the daily operation of the wholesale distribution of prescription-only drugs.

4. Be physically present at the full-service wholesale permittee facility during regular business hours unless the absence of the designated representative is authorized.

5. Serve as a designated representative for only one full-service wholesale permittee.

6. Not have any criminal convictions under any federal, state or local laws relating to wholesale or retail prescription-only drug distribution or distribution of controlled substances.

7. Possess a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1.

C. For the purposes of this article, a full-service wholesale permittee does not include a hospital, chain pharmacy warehouse or third-party logistics provider.

§ 32-1983 Restrictions on transactions

A. A full service wholesale permittee may accept prescription-only drug returns or exchanges from a pharmacy or chain pharmacy warehouse pursuant to the terms of an agreement between the full service wholesale permittee and the pharmacy or chain pharmacy warehouse. The full service wholesale permittee shall not accept as returns or exchanges from the pharmacy or chain pharmacy warehouse:

1. Adulterated or counterfeited prescription-only drugs.

2. An amount or quantity of a prescription-only drug that exceeds the amount or quantity that the full service wholesale permittee or another full service wholesale permittee under common ownership sold to the pharmacy or chain pharmacy warehouse.

B. A full service wholesale permittee may furnish prescription-only drugs only to a pharmacy or medical practitioner. The full service wholesale permittee must first verify that person holds a valid license or permit.

C. The full service wholesale permittee must deliver prescription-only drugs only to the premises listed on the license or permit. A full service wholesale permittee may furnish prescription-only drugs to an authorized person or agent of that premises if:

1. The full service wholesale permittee properly establishes the person's identity and authority.

2. Delivery to an authorized person or agent is used only to meet the immediate needs of a particular patient of the authorized person.

D. A full service wholesale permittee may furnish prescription-only drugs to a pharmacy receiving area if a pharmacist or authorized receiving personnel sign, at the time of delivery, a receipt showing the type and quantity of the prescription-only drug received. Any discrepancy between receipt and the type and quantity of the prescription-only drug actually received must be reported to the full service wholesale permittee by the next business day after the delivery to the pharmacy receiving area.

E. A full service wholesale permittee shall not accept payment for or allow the use of a person or entity's credit to establish an account for the purchase of prescription-only drugs from any person other than the owner of record, the chief executive officer or the chief financial officer listed on the license or permit of a person or entity legally authorized to receive prescription-only drugs. Any account established for the purchase of prescription-only drugs must bear the name of the licensee or permittee.

§ 32-1985 Injunctive relief

The board, through the appropriate county attorney or the office of the attorney general, may apply for injunctive relief in any court of competent jurisdiction or enjoin any person from committing any act in violation of this article. Injunctive proceedings are in addition to all penalties and other remedies prescribed in this chapter.

Article 4 Enforcement of Chapter; Penalties

§ 32-1991 Enforcement of chapter

The state board of pharmacy, the division of narcotics enforcement and criminal intelligence within the department of public safety, all officers exercising police powers, and county attorneys shall enforce the provisions of this chapter, unless such enforcement is otherwise specifically delegated, and they shall cooperate with all officers and agencies charged with enforcement of laws of other states and the United States pertaining to the subject matter of this chapter.

§ 32-1992 Provisions of marijuana, prescription-only drugs, narcotics, dangerous drugs or controlled substances laws not invalidated by this chapter; medicated feed not included

A. Nothing in this chapter shall be construed to relieve any person from any requirement prescribed by or under authority of law with respect to marijuana, prescription-only drugs, narcotics, dangerous drugs or controlled substances as defined in the applicable federal and state laws relating to these drugs or substances.

B. Nothing in this chapter shall be interpreted to include medicated feed for veterinary use.

§ 32-1993 Authorization to seize certain drugs, counterfeit drugs and equipment; disposition of seized equipment

A. The following may be seized by the division of narcotics enforcement and criminal intelligence within the department of public safety and its designated agents and all officers exercising police powers when they have reasonable grounds to believe it is:

1. A drug that is a counterfeit.

2. A container of such counterfeit drug.

3. Equipment used in manufacturing, compounding, or processing a drug with respect to which drug a prohibited act within the meaning of section 32-1965 has occurred.

4. Any punch, die, plate, stone, labeling, container or other thing used or designed for use in making a counterfeit drug.

5. Any conveyance being used to transport, carry or hold a counterfeit drug in violation of section 32-1965, paragraph 4.

B. When any article, equipment, conveyance, or other thing is seized pursuant to this chapter the peace officer shall, within five days thereafter, cause to be filed in the proper court in whose jurisdiction the merchandise is seized or detained a complaint for condemnation of such merchandise as provided in this chapter.

C. Any person, firm, or corporation having an interest in the alleged article, equipment, or other thing proceeded against, or any person, firm or corporation against whom a civil or criminal liability would exist if the merchandise is in violation of section 32-1965, paragraph 4 may, within twenty days following the seizure, serve and file an answer or responsive pleading to the complaint which shall allege the interest or liability of the party filing it.

D. Any article, equipment, conveyance or other thing condemned under this section shall, after entry of the decree, be disposed of by destruction or sale as the court may direct and the proceeds thereof, if sold, less the legal costs and other charges shall be deposited, pursuant to sections 35-146 and 35-147, with the state treasurer.

§ 32-1994 Authorization to embargo adulterated or misbranded drugs or devices; condemnation; destruction; costs

A. When the board or its authorized agent finds or has probable cause to believe that any drug, device, poison, or hazardous substance is adulterated, or so misbranded as to be dangerous or fraudulent, within the meaning of this chapter, he shall affix to such article an appropriate marking, giving notice that such article is, or is suspected of being, adulterated or misbranded and has been detained or embargoed, and warning all persons it is unlawful to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by the board or the court.

B. When an article detained or embargoed under subsection A of this section has been found by the board to be adulterated or misbranded, it shall petition the court in whose jurisdiction the article is detained or embargoed for condemnation of such article, or if feasible, the board may permit the article to be brought into compliance with this chapter.

C. If the court finds that a detained or embargoed article is adulterated or misbranded, and it is not feasible to bring it into compliance with this chapter, such article shall be destroyed at the expense of the claimant who shall also pay all court costs, fees, storage and other proper expenses.

§ 32-1995 Injunctions; restraining orders

In addition to other remedies provided, the board may apply to the proper court for, and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary restraining order, or a temporary or permanent injunction restraining any person from violating any provision of this chapter.

§ 32-1996 Violations; classification; civil penalty

A. Except as provided in this section, a person who violates this chapter:

1. Without the intent to defraud or mislead is guilty of a class 2 misdemeanor.

2. With the intent to defraud or mislead is guilty of a class 5 felony.

B. A person who violates section 32-1965, paragraph 4 or article 3.1 of this chapter is guilty of a class 2 felony.

C. Any person who secures a license or permit for that person or for another person by knowingly making a false representation, who fraudulently claims to be licensed as a pharmacist or pharmacy intern within the meaning of this chapter or who knowingly engages in the practice of pharmacy without a license is guilty of a class 2 misdemeanor.

D. A person who secures a license as a pharmacy technician or a registration as a pharmacy technician trainee for that person or for another person by knowingly making a false representation, who fraudulently claims to be licensed as a pharmacy technician or registered as a pharmacy technician trainee or who knowingly performs the duties of a pharmacy technician or a pharmacy technician trainee without a license or registration is guilty of a class 2 misdemeanor.

E. A person who dispenses a human growth hormone in violation of this chapter is guilty of a class 6 felony.

F. A court convicting any person for a violation of this chapter shall, immediately after the date of conviction, send a complete copy of the record of the conviction, including the person's name and offense committed, to the executive director of the board.

G. A person who violates section 32-1978 shall be issued a civil penalty only as set forth in that section.

§ 32-1997 Misbranding; promotion of off-label use; definitions

A. Notwithstanding any other law, a pharmaceutical manufacturer or its representative may engage in truthful promotion of an off-label use of a drug, biological product or device.

B. This section does not require a health care insurer, other third-party payor or other health plan sponsor to provide coverage for the cost of any off-label use of a drug, biological product or device as a treatment.

C. Notwithstanding any other law, an official, employee or agent of this state may not enforce or apply section 32-1967 against or otherwise prosecute a pharmaceutical manufacturer or its representative for engaging in truthful promotion of an off-label use of a drug, biological product or device.

D. Notwithstanding any other law, the Arizona state board of pharmacy, the Arizona medical board, the Arizona board of osteopathic examiners in medicine and surgery and the department of health services may not revoke, fail to renew or take any other action against the license of a pharmaceutical manufacturer or its representative, a health care institution or a physician solely for engaging in truthful promotion of an off-label use of a drug, biological product or device.

E. For the purposes of this section:

1. "Biological product" has the same meaning prescribed in 42 United States Code section 262.

2. "Misbranding" has the same meaning described in section 32-1967 or 21 United States Code section 352.

3. "Off-label use" means the use of a United States food and drug administration-approved drug, biological product or device in a manner other than the use approved by the United States food and drug administration.

4. "Truthful promotion" means the sharing of information that is not misleading, not contrary to fact, and consistent with generally accepted scientific principles, between pharmaceutical manufacturers and licensed professionals who can prescribe medication within the provider's scope of practice.

Chapter 19 Board of Physical Therapy

Article 1 General Provisions

§ 32-2001 Definitions

In this chapter, unless the context otherwise requires:

1. "Assistive personnel":

(a) Includes:

(i) Physical therapist assistants.

(ii) Physical therapy aides.

(iii) Other assistive personnel who are trained or educated health care providers and who are not physical therapist assistants or physical therapy aides but who perform specific designated tasks related to physical therapy under the supervision of a physical therapist. At the discretion of the supervising physical therapist, and if properly credentialed and not prohibited by any other law, other assistive personnel may be identified by the title specific to their training or education.

(b) Does not include either:

(i) Personnel assisting other health care professionals licensed pursuant to this title in performing delegable treatment responsibilities within their scope of practice.

(ii) Student physical therapists and student physical therapist assistants.

2. "Board" means the board of physical therapy.

3. "Business entity" means a business organization that has an ownership that includes any persons who are not licensed or certified to provide physical therapy services in this state, that offers to the public professional services regulated by the board and that is established pursuant to the laws of any state or foreign country.

4. "Dry needling" means a skilled intervention performed by a physical therapist that uses a thin filiform needle to penetrate the skin and stimulate underlying neural, muscular and connective tissues to evaluate and manage neuromusculoskeletal conditions, pain and movement impairments.

5. "General supervision":

(a) Means that the supervising physical therapist is on call and is readily available via telecommunications when the physical therapist assistant is providing treatment interventions.

(b) Includes supervision provided through telehealth as defined in section 36-3601.

6. "Interim permit" means a permit issued by the board that allows a person to practice as a physical therapist in this state or to work as a physical therapist assistant for a specific period of time and under conditions prescribed by the board before that person is issued a license.

7. "Manual therapy techniques" means a broad group of passive interventions in which physical therapists use their hands to administer skilled movements designed to modulate pain, increase joint range of motion, reduce or eliminate soft tissue swelling, inflammation or restriction, induce relaxation, improve contractile and noncontractile tissue extensibility, and improve pulmonary function. These interventions involve a variety of techniques, such as the application of graded forces.

8. "On-site supervision" means that the supervising physical therapist is on-site and is present in the facility or on the campus where assistive personnel, a holder of an interim permit, a student physical therapist or a student physical therapist assistant is performing services, is immediately available to assist the person being supervised in the services being performed and maintains continued involvement in appropriate aspects of each treatment session in which a component of treatment is delegated.

9. "Physical therapist" means a person who is licensed pursuant to this chapter.

10. "Physical therapist assistant" means a person who meets the requirements of this chapter for licensure and who performs physical therapy procedures according to the physical therapy plan of care of the supervising physical therapist.

11. "Physical therapy" means the care and services provided by or under the direction and supervision of a physical therapist who is licensed pursuant to this chapter.

12. "Physical therapy aide" means a person who is trained under the direction of a physical therapist and who performs designated and supervised routine physical therapy tasks.

13. "Practice of physical therapy" means:

(a) Examining, evaluating and testing persons who have mechanical, physiological and developmental impairments, functional limitations and disabilities or other health and movement related conditions in order to determine a diagnosis, a prognosis and a plan of therapeutic intervention and to assess the ongoing effects of intervention, including ordering imaging.

(b) Alleviating impairments and functional limitations by managing, designing, implementing and modifying therapeutic interventions including:

(i) Therapeutic exercise.

(ii) Functional training in self-care and in home, community or work reintegration.

(iii) Manual therapy techniques.

(iv) Therapeutic massage.

(v) Assistive and adaptive orthotic, prosthetic, protective and supportive devices and equipment.

(vi) Pulmonary hygiene.

(vii) Debridement and wound care.

(viii) Physical agents or modalities.

(ix) Mechanical and electrotherapeutic modalities.

(x) Patient related instruction.

(c) Reducing the risk of injury, impairments, functional limitations and disability by means that include promoting and maintaining a person's fitness, health and quality of life.

(d) Engaging in administration, consultation, education and research.

14. "Restricted license" means a license on which the board places restrictions or conditions, or both, as to the scope of practice, place of practice, supervision of practice, duration of licensed status or type or condition of a patient to whom the licensee may provide services.

15. "Restricted registration" means a registration on which the board places any restrictions as the result of disciplinary action.

16. "Student physical therapist" means a person who is enrolled in a doctor of physical therapy program that is accredited by or has candidate status by the commission on accreditation in physical therapy education.

17. "Student physical therapist assistant" means a person who is enrolled in an academic physical therapist assistant program that is accredited by or has candidate status by the commission on accreditation in physical therapy education.

§ 32-2002 Board of physical therapy; membership; appointment; qualifications; terms; removal; reimbursement; immunity

A. The board of physical therapy is established consisting of members appointed by the governor pursuant to section 38-211. Four members shall be physical therapists who are residents of this state, possess an unrestricted license to practice physical therapy in this state and have been practicing in this state for at least five years before their appointment. One member shall be a physical therapist assistant who is a resident of this state, possesses an unrestricted license issued pursuant to this chapter and has been performing selected interventions in this state for at least five years before the person's appointment. The governor shall also appoint two public members who are residents of this state and who are not affiliated with, and do not have a financial interest in, any health care profession but who have an interest in consumer rights.

B. Board members serve staggered four-year terms. Board members shall not serve for more than two successive four-year terms or for more than ten consecutive years. By approval of a majority of the board, a member's service may extend at the completion of a four-year term until a new member is appointed or the current member is reappointed.

C. If requested by the board the governor may remove a board member for misconduct, incompetence or neglect of duty.

D. Board members are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2 to cover necessary expenses for attending each board meeting or for representing the board in an official board approved activity.

E. A board member who acts within the scope of board duties, without malice and in the reasonable belief that the person's action is warranted by law is immune from civil liability.

§ 32-2003 Board; powers and duties

A. The board shall:

1. Evaluate the qualifications of applicants for licensure.

2. Provide for national examinations for physical therapists and physical therapist assistants and adopt passing scores for these examinations.

3. Issue licenses and permits to persons who meet the requirements of this chapter.

4. Regulate the practice of physical therapy by interpreting and enforcing this chapter.

5. Adopt and revise rules to enforce this chapter.

6. Meet at least once each quarter in compliance with the open meeting requirements of title 38, chapter 3, article 3.1 and keep an official record of these meetings.

7. Establish the mechanisms for assessing continuing professional competence of physical therapists to engage in the practice of physical therapy and the competence of physical therapist assistants to work in the field of physical therapy.

8. At its first regular meeting after the start of each calendar year, elect officers from among its members and as necessary to accomplish board business.

9. Provide for the timely orientation and training of new professional and public appointees to the board regarding board licensing and disciplinary procedures, this chapter, board rules and board procedures.

10. Maintain a current list of all persons regulated under this chapter. This list shall include the person's name, current business and residential addresses, telephone numbers and license number.

11. Subject to title 41, chapter 4, article 4, employ necessary personnel to carry out the administrative work of the board. Board personnel are eligible to receive compensation pursuant to section 38-611.

12. Enter into contracts for services necessary for adequate enforcement of this chapter.

13. Report final disciplinary action taken against a licensee to a national disciplinary database recognized by the board.

14. Publish, at least annually, final disciplinary actions taken against a licensee.

15. Publish, at least annually, board rulings, opinions and interpretations of statutes or rules in order to guide persons who are regulated pursuant to this chapter.

16. Not later than December 31 of each year, submit a written report of its actions and proceedings to the governor.

17. Establish and collect fees.

18. Provide information to the public regarding the board, its processes and consumer rights.

B. The board may establish a committee or committees to assist it in carrying out its duties for a time prescribed by the board. The board may require a committee appointed pursuant to this subsection to make regular reports to the board.

§ 32-2004 Board of physical therapy fund

(L24, Ch. 222, sec. 29. Eff. until 7/1/28)

A. The board of physical therapy fund is established. The board shall administer the fund.

B. Except as provided in section 32-2048, pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies collected under this chapter in the state general fund and deposit the remaining eighty-five percent in the board of physical therapy fund.

C. Monies deposited in the physical therapy fund are subject to section 35-143.01.

§ 32-2004 (Version 2) Board of physical therapy fund

(L24, Ch. 222, sec. 30. Eff. 7/1/28)

A. The board of physical therapy fund is established. The board shall administer the fund.

B. Except as provided in section 32-2048, pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies collected under this chapter in the state general fund and deposit the remaining ninety percent in the board of physical therapy fund.

C. Monies deposited in the physical therapy fund are subject to section 35-143.01.

Article 2 Licensure and Examination

§ 32-2021 Persons and activities not required to be licensed

A. This chapter does not restrict a person who is licensed under any other law of this state from engaging in the profession or practice for which that person is licensed if that person does not claim to be a physical therapist or a provider of physical therapy.

B. This chapter does not restrict the use of physical agents, modalities or devices by persons qualified under this title to personally render or delegate the use of this treatment.

C. The following persons are exempt from the licensure requirements of this chapter:

1. A person in a professional education program approved by the board who is satisfying supervised clinical education requirements related to the person's physical therapist or physical therapist assistant education while under the on-site supervision of a physical therapist.

2. A physical therapist who is practicing or a physical therapist assistant who is working in the United States armed services, United States public health service or veterans administration pursuant to federal regulations for state licensure of health care providers.

3. A physical therapist who is licensed in another jurisdiction of the United States or a foreign educated physical therapist credentialed in another country if that person is performing physical therapy in connection with teaching or participating in an educational seminar for not more than sixty days in any twelve month period.

4. A physical therapist who is licensed in another jurisdiction of the United States or who is credentialed in another country if that person by contract or employment is providing physical therapy to persons who are affiliated with or employed by established athletic teams, athletic organizations or performing arts companies temporarily practicing, competing or performing in this state for not more than sixty days in a calendar year.

5. A physical therapist who is licensed in another jurisdiction of the United States and who enters this state to provide physical therapy to victims of a declared local, state or national disaster or emergency. This exemption applies for the duration of the declared emergency but not longer than sixty days. The physical therapist must also register with the board before practicing.

§ 32-2022 Qualifications for licensure; fingerprint clearance card

A. An applicant for a license as a physical therapist who has been educated in the United States shall:

1. Complete the application process.

2. Be a graduate of a professional physical therapy education program that is accredited by a national accreditation agency approved by the board.

3. Have successfully passed the national examination approved by the board.

4. Have successfully passed a jurisprudence examination that tests the applicant's knowledge of board statutes and rules.

5. Obtain a valid fingerprint clearance card issued pursuant to section 41-1758.03.

B. An applicant for a license as a physical therapist who has been educated outside of the United States shall:

1. Complete the application process.

2. Provide satisfactory evidence that the applicant's education is substantially equivalent to the requirements of physical therapists educated in accredited educational programs as determined by the board. If the board determines that a foreign-educated applicant's education is not substantially equivalent, it may require the person to complete additional coursework before it proceeds with the application process. It is not necessary that coursework completed by the applicant be identical in all respects to that required by an education program in the United States for an entry-level physical therapy degree, but all required content areas must be evident as required by board rules. Deficiencies may occur only in coursework and not in essential areas of professional education and shall not be of a magnitude that would cause the education to be deemed below entry-level preparation for practice in this state.

3. Provide written proof of legal authorization to practice as a physical therapist without limitation in the country where the professional education occurred. The board may waive this requirement on receipt of written proof that the applicant cannot demonstrate legal authorization based on the citizenship requirements of the country where the professional education occurred.

4. Provide proof of legal authorization to reside and seek employment in the United States or its territories.

5. Have passed the board-approved English proficiency examinations if the applicant's native language is not English.

6. Have participated in an interim supervised clinical practice period before licensure as approved by the board or shall have already met this requirement to the board's satisfaction by virtue of the applicant's clinical practice in another jurisdiction of the United States.

7. Have successfully passed the national examination approved by the board.

8. Have successfully passed a jurisprudence examination that tests the applicant's knowledge of board statutes and rules.

9. Obtain a valid fingerprint clearance card issued pursuant to section 41-1758.03.

C. Notwithstanding the requirements of subsection B of this section, if the foreign-educated physical therapist applicant is a graduate of an accredited educational program as determined by the board, the board may waive the requirements of subsection B, paragraphs 2 and 6 of this section.

D. An applicant for licensure as a physical therapist assistant shall meet the following requirements:

1. Complete the application process.

2. Be a graduate of a physical therapist assistant education program accredited by an agency approved by the board.

3. Have successfully passed the national examination approved by the board.

4. Have successfully passed a jurisprudence examination that tests the applicant's knowledge of board statutes and rules.

5. Obtain a valid fingerprint clearance card issued pursuant to section 41-1758.03.

E. For the purposes of subsection B, paragraph 2 of this section, "substantially equivalent" means that the applicant provides documentation satisfactory to the board that:

1. The applicant graduated from a physical therapist education program that prepares the applicant to engage without restriction in the practice of physical therapy.

2. The applicant's school of physical therapy education is recognized by its own ministry of education. The board may waive this requirement for good cause shown.

3. The applicant has undergone a credentials evaluation as directed by the board that determines that the applicant has met uniform criteria for educational requirements pursuant to board rules.

4. The applicant has completed any additional education required by the board.

§ 32-2023 Application; denial; hearing

A. An applicant for licensure shall file a completed application as required by the board. The applicant shall include the application fee prescribed in section 32-2029.

B. The board may deny a license to an applicant or a licensee for any of the following:

1. Knowingly making a false statement of fact required to be revealed in the initial application, renewal application or reinstatement application for a license.

2. Committing fraud in the procurement of a license.

3. Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case conviction by a court of competent jurisdiction is conclusive evidence of the commission.

4. Attempting to engage in conduct that subverts or undermines the integrity of the examination or the examination process, including using in any manner recalled or memorized examination questions from or with a person or entity, failing to comply with all test center security procedures, communicating or attempting to communicate with other examinees during the examination or copying or sharing examination questions or portions of questions.

5. Engaging in any conduct that would be considered a violation of section 32-2044.

C. If the board denies an application because of deficiencies or reasons in an application or for a reason prescribed in subsection B of this section, the board must inform an applicant of those specific deficiencies. On receipt of a written request by an applicant who disagrees with the board's decision to deny an application, the board shall hold a hearing pursuant to title 41, chapter 6, article 10.

§ 32-2024 Examinations

A. The board shall prescribe examinations for licensure and determine the passing score.

B. An applicant may take the examinations for licensure if either of the following applies:

1. The applicant has met all of the requirements of section 32-2022, subsection A, paragraphs 1 and 2 and has paid the fees prescribed by this chapter.

2. The applicant has:

(a) Met all of the requirements of section 32-2022, subsection A, paragraph 1.

(b) Paid the fees prescribed by this chapter.

(c) Submitted with the application a letter on the official letterhead of the accredited educational institution where the applicant is completing an accredited educational program that includes the signature of the program director, the department chairperson or a similarly authorized person of the university or college and that states that:

(i) The applicant is a candidate for a degree as a physical therapist at the next scheduled graduation date.

(ii) The date the national examination for licensure is to be taken by the applicant is the one nearest to and before the applicant's expected graduation date and is not more than one hundred twenty days before the date of the applicant's expected graduation date.

(iii) The applicant meets any other established requirements of the accredited educational program, if applicable.

C. An applicant may take the examinations for licensure if the applicant has met all of the requirements of section 32-2022, subsection B, paragraphs 1 through 5 and has paid the fees prescribed by this chapter.

D. An applicant may take the examinations for licensure if either of the following applies:

1. The applicant has met all of the requirements of section 32-2022, subsection D, paragraphs 1 and 2 and has paid the fees prescribed by this chapter.

2. The applicant has:

(a) Met all of the requirements of section 32-2022, subsection D, paragraph 1.

(b) Paid the fees prescribed by this chapter.

(c) Submitted with the application a letter on the official letterhead of the accredited educational institution where the applicant is completing an accredited educational program that includes the signature of the program director, the department chairperson or a similarly authorized person of the university, school or college and that states that:

(i) The applicant is a candidate for a certificate or degree as a physical therapist assistant at the next scheduled graduation date.

(ii) The date the national examination for licensure is to be taken by the applicant is the one nearest to and before the applicant's expected graduation date and is not more than one hundred twenty days before the date of the applicant's expected graduation date.

(iii) The applicant meets any other established requirements of the accredited educational program, if applicable.

E. An applicant for licensure who does not pass the national examination after the first attempt may retake the examination one additional time within six months after the first failure without reapplication for licensure. An applicant may retake the examinations as prescribed by the organization that administers the examinations.

F. The board shall not issue a license to a person who passes an examination through fraud.

G. The national examination for licensure as a physical therapist shall test entry-level competence related to physical therapy theory, examination and evaluation, diagnosis, prognosis, treatment intervention, prevention and consultation. The national examination for licensure as a physical therapist assistant shall test for requisite knowledge and skills in the technical application of physical therapy services.

§ 32-2025 Interim permits

A. If a foreign educated applicant satisfies the requirements of section 32-2022, subsection B, before the board issues a license it shall issue an interim permit to the applicant for the purpose of participating in a supervised clinical practice period. An applicant who fails the national examination is not eligible for an interim permit until the applicant passes the examination.

B. If an applicant who has been educated in the United States satisfies the requirements of section 32-2022, subsection A or D, but the board determines that there is evidence that the applicant lacks the competence to practice as a physical therapist or work as a physical therapist assistant, the board shall issue an interim permit to the applicant to allow that person to participate in a supervised clinical practice.

C. The board may issue an interim permit for at least ninety days but not more than six months.

D. An interim permit holder shall complete, to the satisfaction of the board, a period of clinical practice in a facility approved by the board and under the continuous and on-site supervision of a physical therapist who holds an unrestricted license issued pursuant to this chapter.

E. At any time during an interim supervised clinical practice period, the board may revoke an interim permit because of the permit holder's incompetence or for a violation of this chapter. Pursuant to title 41, chapter 6, article 10, the board shall hold a hearing on request of a permit holder whose permit is revoked.

§ 32-2026 Licensure by endorsement

A. The board shall issue a license to a physical therapist who has a valid unrestricted license from another jurisdiction of the United States if that person, when granted the license, met all of the requirements prescribed in section 32-2022, subsection A or B and any applicable board rules.

B. The board shall issue a license to a physical therapist assistant who has a valid unrestricted license or certificate from another jurisdiction of the United States if that person, when granted the license or certificate, met all of the requirements prescribed in section 32-2022, subsection D and any applicable board rules.

§ 32-2027 License renewal; suspension

A. A licensee shall renew the license pursuant to board rules. Except as provided in section 32-4301, a licensee who fails to renew the license on or before its expiration date shall not practice as a physical therapist or work as a physical therapist assistant in this state.

B. The board shall administratively suspend a license if the licensee does not submit a complete application for renewal and pay the renewal fee pursuant to board rules.

§ 32-2028 Reinstatement of license

A. The board may reinstate a license that it suspended pursuant to section 32-2027, subsection B on payment of a renewal fee and reinstatement fee and completion of the application process as prescribed by the board.

B. If a person's license has been suspended pursuant to section 32-2027, subsection B for more than three consecutive years, the license expires and that person shall reapply for a license pursuant to section 32-2022 or 32-2026 and pay all applicable fees. The person must also demonstrate to the board's satisfaction competency by satisfying one or more of the following as prescribed by the board:

1. Practicing for a specified time under an interim permit.

2. Completing remedial courses.

3. Completing continuing competence requirements for the period of the lapsed license.

4. Passing an examination.

§ 32-2029 Fees

The board shall establish and collect fees of not more than:

1. $300 for an application for an original license. This fee is nonrefundable.

2. $300 for a certificate of renewal of a license.

3. $300 for an application for reinstatement of licensure.

4. $50 for each duplicate license.

§ 32-2030 Business entities; patient records; protocol; exemptions; rules

A. A business entity shall not offer physical therapy services pursuant to this chapter unless:

1. The business entity is registered with the board pursuant to this section.

2. The physical therapy services are conducted by a licensee pursuant to this chapter.

B. The business entity must file a registration application on a form prescribed by the board. The application shall include:

1. A description of the entity's services offered to the public.

2. The name of the manager who is authorized and who is responsible for managing the physical therapy services offered at each office.

3. The names and addresses of the officers and directors of the business entity.

4. A registration fee prescribed by the board by rule.

C. A business entity must file a separate registration application and pay a fee for each branch office in this state.

D. A registration expires on August 31 of odd-numbered years in accordance with the physical therapist professional licensing schedule. A business entity that wishes to renew a registration must submit an application for renewal as prescribed by the board on a biennial basis on a form prescribed by the board before the expiration date. An entity that fails to renew the registration before the expiration date is subject to a late fee as prescribed by the board by rule.

E. The business entity must notify the board in writing within thirty days after any change:

1. In the business entity's name, address or telephone number.

2. In the officers or directors of the business entity.

3. In the name of the manager who is authorized and who is responsible for managing the physical therapy services in any facility.

F. The business entity must establish and implement a written protocol for the secure storage, transfer and access of the physical therapy records of the business entity's patients. This protocol must include, at a minimum, procedures for:

1. Notifying patients of the future locations of their records if the business entity terminates or sells the practice.

2. Disposing of unclaimed physical therapy records.

3. The timely response to requests by patients for copies of their records.

G. The business entity must notify the board within thirty days after the dissolution of any registered business entity or the closing or relocation of any facility and must disclose to the board the entity's procedure by which its patients may obtain their records.

H. This section does not apply to:

1. A sole proprietorship or partnership that consists exclusively of persons who are licensed by a health profession regulatory board as defined in section 32-3201.

2. A facility regulated by the federal government or a state, district or territory of the United States.

3. An administrator or executor of the estate of a deceased physical therapist or a person who is legally authorized to act for a physical therapist who has been adjudicated to be mentally incompetent for not more than one year from the date the board receives notice of the physical therapist's death or incapacitation.

4. A health care institution that is licensed pursuant to title 36.

I. A facility that offers physical therapy services to the public by persons licensed under this chapter must be registered by the board unless the facility is any of the following:

1. Owned by a licensee.

2. Regulated by the federal government or a state, district or territory of the United States.

J. Except for issues relating to insurance coding and billing that require the name, signature and license number of the physical therapist providing treatment, this section does not:

1. Authorize a licensee in the course of providing physical therapy services for an entity registered pursuant to this section to disregard or interfere with a policy or practice established by the entity for the operation and management of the business.

2. Authorize a business entity registered pursuant to this section to establish or enforce a business policy or practice that may interfere with the professional judgment of the licensee in providing physical therapy services for the business entity or may compromise a licensee's ability to comply with this chapter.

K. The board shall adopt rules that provide a method for the board to receive the assistance and advice of business entities registered pursuant to this section in all matters relating to the regulation of business entities.

L. The board shall adopt rules necessary to enforce this chapter in the practice settings of its licensees and registrants if the practice settings are not regulated by the department of health services.

§ 32-2031 Retired status; reinstatement to active status

A. The board shall place a licensee on retired status and waive the renewal fee and continuing competence requirements if a licensee presents a written affidavit to the board that the licensee has retired from the practice of physical therapy or from work as a physical therapist assistant, is in good standing with the board and has paid all fees required by this chapter before the waiver.

B. During the period of waiver pursuant to subsection A of this section, the retired licensee may not engage in the practice of physical therapy or work as a physical therapist assistant.

C. A retired licensee must renew the retired license every two years by verifying the person's contact information and using the same schedule for renewal of an active license. The board may not charge a fee for renewal of a retired license.

D. If a licensee fails to renew the retired status of the license on or before its expiration date, the retired license expires. If the person seeks to reinstate the person's retired status after the retired license has expired, the person must make a request for retired status pursuant to subsection A of this section.

E. The board may reinstate a retired licensee to active practice or work on payment of the renewal fee and presentation of evidence satisfactory to the board that the retired licensee is professionally able to engage in the practice of physical therapy or work as a physical therapist assistant and still possesses the professional knowledge required. If the retired licensee has held a retired license for more than three consecutive years, the person must also demonstrate competency to the board's satisfaction by satisfying one or more of the following as prescribed by the board:

1. Practicing or working for a specified time under an interim permit.

2. Completing remedial courses.

3. Completing continuing competence requirements for the period of the retired license.

4. Passing an examination as prescribed by the board.

§ 32-2032 Inactive status; reinstatement to active status

A. The board shall place a licensee on inactive status and waive the continuing competence requirements if a licensee presents a written affidavit to the board that the licensee is not currently engaged in the practice of physical therapy or working as a physical therapist assistant in this state, is in good standing with the board and has paid all fees required by this chapter.

B. During the period of inactive status pursuant to subsection A of this section, the inactive licensee may not engage in the practice of physical therapy or work as a physical therapist assistant in this state.

C. A licensee on inactive status must renew the inactive license every two years using the same schedule for renewal of an active license. The board by rule shall prescribe the fee for the renewal of an inactive license.

D. An inactive licensee who applies to the board for reinstatement to active licensure within three years after the date the board issues a notice of inactive status must submit the full annual renewal fee and prove to the board's satisfaction that the licensee has met continuing competence requirements as prescribed by the board by rule.

E. An inactive licensee who applies to the board for reinstatement to active licensure and who has not been actively engaged in the practice of physical therapy or working as a physical therapist assistant in this state for more than three consecutive years after the date the board issues a notice of inactive status must submit the full annual renewal fee and demonstrate competency to the board's satisfaction by satisfying one or more of the following as prescribed by the board:

1. Practicing or working for a specified time under an interim permit.

2. Completing remedial courses.

3. Completing continuing competence requirements for the period of the inactive license.

4. Passing an examination.

Article 3 Regulation of Physical Therapy

§ 32-2041 Lawful practice

A. A physical therapist shall refer a client to appropriate health care practitioners if the physical therapist has reasonable cause to believe symptoms or conditions are present that require services beyond the scope of practice or if physical therapy is contraindicated.

B. A physical therapist shall adhere to the recognized standards of ethics of the physical therapy profession and as further established by rule.

C. A physical therapist licensed under this chapter shall practice physical therapy as prescribed by this chapter.

§ 32-2041.01 Imaging; ordering; requirements; reporting

A. A physical therapist may order imaging. The imaging shall be performed by a health care practitioner who is authorized pursuant to this title to perform the imaging and shall be interpreted by a physician who is licensed pursuant to chapter 13, 14 or 17 of this title and trained in radiology interpretation.

B. A physical therapist shall report results for all imaging tests that the physical therapist orders pursuant to subsection A of this section to the patient's health care practitioner of record or the referring health care practitioner, if designated, within seven days after receiving the results. If the patient does not have a health care practitioner of record, the physical therapist shall refer the patient to an appropriate health care practitioner if the physical therapist has reasonable cause to believe that any symptoms or conditions are present that may require services beyond the physical therapist's scope of practice.

C. A physical therapist may order imaging pursuant to this section only for a patient with whom the physical therapist has a physical therapist-patient relationship and for whom there is a clinical need for the order.

§ 32-2042 Use of titles; restrictions; violation; classification

A. A physical therapist shall use the letters "PT" in connection with the physical therapist's name or place of business to denote licensure under this chapter. A physical therapist on retired status shall use "(retired)" or "(ret.)" after the letters "PT" in connection with the physical therapist's name or place of business to denote the physical therapist's retired status pursuant to section 32-2031.

B. A physical therapist assistant shall use the letters "PTA" in connection with that person's name to denote licensure pursuant to this chapter. A physical therapist assistant on retired status shall use "(retired)" or "(ret.)" after the letters "PTA" in connection with the physical therapist assistant's name or place of business to denote the physical therapist assistant's retired status pursuant to section 32-2031.

C. A person or business entity or its employees, agents or representatives shall not use in connection with that person's name or the name or activity of the business the words "physical therapy", "physical therapist", "physiotherapy", "physiotherapist" or "registered physical therapist", the letters "PT", "LPT", "RPT", "MPT", "DScPT" or "DPT" or any other words, abbreviations or insignia indicating or implying directly or indirectly that physical therapy is provided or supplied, including the billing of services labeled as physical therapy, unless these services are provided by or under the direction of a physical therapist who is licensed pursuant to this chapter. A person or entity that violates this subsection is guilty of a class 1 misdemeanor.

D. A person or business entity shall not advertise, bill or otherwise promote a person who is not licensed pursuant to this chapter as being a physical therapist or offering physical therapy services.

E. A person shall not use the title "physical therapist assistant" or use the letters "PTA" in connection with that person's name or any other words, abbreviations or insignia indicating or implying directly or indirectly that the person is a physical therapist assistant unless that person is licensed as a physical therapist assistant pursuant to this chapter. A person who violates this subsection is guilty of a class 1 misdemeanor.

§ 32-2043 Supervision; patient care management

A. A physical therapist is responsible for patient care given by assistive personnel, student physical therapists and student physical therapist assistants under the physical therapist's supervision. A physical therapist may delegate to assistive personnel and supervise selected acts, tasks or procedures that fall within the scope of physical therapy practice but that do not exceed the education or training of the assistive personnel.

B. A physical therapist assistant who is licensed pursuant to this chapter may provide physical therapy services under the general supervision of a physical therapist who is licensed pursuant to this chapter.

C. A physical therapy aide and other assistive personnel shall perform designated routine tasks only under the on-site supervision of a licensed physical therapist.

D. A licensed physical therapist must provide on-site supervision of an interim permit holder.

E. A physical therapist student and a physical therapist assistant student must practice under the on-site supervision of a licensed physical therapist.

F. A physical therapist is responsible for managing all aspects of the physical therapy care of each patient. A physical therapist must provide:

1. The initial evaluation of and documentation for a patient.

2. Periodic reevaluation of and documentation for a patient.

3. The documented discharge of a patient, including the response to therapeutic intervention at the time of discharge.

G. A physical therapist must verify the qualifications of physical therapist assistants and other assistive personnel under the physical therapist's direction and supervision.

H. For each patient on each date of service, a physical therapist must provide and document all of the therapeutic intervention that requires the expertise of a physical therapist to ensure the delivery of care that is safe, effective and efficient. Documentation for each date of service must be as prescribed by the board by rule.

I. A physical therapist assistant must document care provided but may do so without the cosignature of the supervising physical therapist if the physical therapist complies with the requirements of subsections G and H of this section.

J. A physical therapist's responsibility for patient care management includes accurate documentation and billing of the services provided.

§ 32-2044 Grounds for disciplinary action

The following are grounds for disciplinary action:

1. Violating this chapter, board rules or a written board order.

2. Practicing or offering to practice beyond the scope of the practice of physical therapy.

3. Obtaining or attempting to obtain a license by fraud or misrepresentation.

4. Engaging in the performance of substandard care by a physical therapist due to a deliberate or negligent act or failure to act regardless of whether actual injury to the patient is established.

5. Engaging in the performance of substandard care by a physical therapist assistant, including exceeding the authority to perform tasks selected and delegated by the supervising licensee regardless of whether actual injury to the patient is established.

6. Failing to supervise assistive personnel, physical therapy students or interim permit holders in accordance with this chapter and rules adopted pursuant to this chapter.

7. Conviction of a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case conviction by a court of competent jurisdiction is conclusive evidence of the commission and the board may take disciplinary action when the time for appeal has lapsed, when the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order. For the purposes of this paragraph, "conviction" means a plea or verdict of guilty or a conviction following a plea of nolo contendere.

8. Practicing as a physical therapist or working as a physical therapist assistant when physical or mental abilities are impaired by disease or trauma, by the use of controlled substances or other habit-forming drugs, chemicals or alcohol or by other causes.

9. Having had a license or certificate revoked or suspended or other disciplinary action taken or an application for licensure or certification refused, revoked or suspended by the proper authorities of another state, territory or country.

10. Engaging in sexual misconduct. For the purposes of this paragraph, "sexual misconduct" includes:

(a) Engaging in or soliciting sexual relationships, whether consensual or nonconsensual, while a provider-patient relationship exists.

(b) Making sexual advances, requesting sexual favors or engaging in other verbal conduct or physical contact of a sexual nature with patients.

(c) Intentionally viewing a completely or partially disrobed patient in the course of treatment if the viewing is not related to patient diagnosis or treatment under current practice standards.

11. Directly or indirectly requesting, receiving or participating in the dividing, transferring, assigning, rebating or refunding of an unearned fee or profiting by means of any credit or other valuable consideration such as an unearned commission, discount or gratuity in connection with the furnishing of physical therapy services. This paragraph does not prohibit the members of any regularly and properly organized business entity recognized by law and composed of physical therapists from dividing fees received for professional services among themselves as they determine necessary to defray their joint operating expense.

12. Failing to adhere to the recognized standards of ethics of the physical therapy profession.

13. Charging unreasonable or fraudulent fees for services performed or not performed.

14. Making misleading, deceptive, untrue or fraudulent representations in violation of this chapter or in the practice of the profession.

15. Having been adjudged mentally incompetent by a court of competent jurisdiction.

16. Aiding or abetting a person who is not licensed in this state and who directly or indirectly performs activities requiring a license.

17. Failing to report to the board any direct knowledge of an unprofessional, incompetent or illegal act that appears to be in violation of this chapter or board rules.

18. Interfering with an investigation or disciplinary proceeding by failing to cooperate, by wilful misrepresentation of facts or by the use of threats or harassment against any patient or witness to prevent the patient or witness from providing evidence in a disciplinary proceeding or any legal action.

19. Failing to maintain patient confidentiality without prior written consent of the patient or unless otherwise required by law.

20. Failing to maintain adequate patient records. For the purposes of this paragraph, "adequate patient records" means legible records that comply with board rules and that contain at a minimum an evaluation of objective findings, a diagnosis, the plan of care, the treatment record, a discharge summary and sufficient information to identify the patient.

21. Promoting an unnecessary device, treatment intervention or service for the financial gain of the practitioner or of a third party.

22. Providing treatment intervention unwarranted by the condition of the patient or treatment beyond the point of reasonable benefit.

23. Failing to report to the board a name change or a change in business or home address within thirty days after that change.

24. Failing to complete continuing competence requirements as established by the board by rule.

25. Failing to demonstrate professional standards of care and training and education qualifications, as established by the board by rule, in the performance of dry needling when provided as a therapeutic modality.

§ 32-2045 Investigative powers; emergency action

A. To enforce this chapter the board may:

1. Receive complaints filed against licensees or certificate holders and conduct a timely investigation.

2. Conduct an investigation at any time and on its own initiative without receipt of a written complaint if the board has reason to believe that there may be a violation of this chapter.

3. Issue subpoenas to compel the attendance of any witness or the production of any documentation relative to a case.

4. Take emergency action ordering the summary suspension of a license or certificate or the restriction of the licensee's practice or certificate holder's employment pending proceedings by the board.

5. Require a licensee or certificate holder to be examined in order to determine the licensee's or certificate holder's mental, physical or professional competence to practice or work in the field of physical therapy.

B. If the board finds that the information received in a complaint or an investigation is not of sufficient seriousness to merit direct action against the licensee or certificate holder it may take either of the following actions:

1. Dismiss the complaint if the board believes the information or complaint is without merit.

2. Issue an advisory letter. The issuance of an advisory letter is a nondisciplinary action to notify a licensee or certificate holder that, while there is not sufficient evidence to merit disciplinary action, the board believes that the licensee or certificate holder should be educated about the requirements of this chapter and board rules. An advisory letter is a public document and may be used in future disciplinary actions against a licensee or certificate holder.

3. Issue a nondisciplinary order requiring the licensee or certificate holder to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee or certificate holder with the necessary understanding of current standards, skills, procedures or treatment.

C. The board shall notify a licensee or certificate holder of a complaint and the nature of the complaint within ninety days after receiving the complaint.

D. Any person may submit a complaint regarding any licensee, certificate holder or other person potentially in violation of this chapter. Confidentiality shall be maintained subject to law.

E. The board shall keep confidential all information relating to the receipt and investigation of complaints filed against licensees and certificate holders until the information becomes public record or as required by law.

§ 32-2046 Informal and formal hearings

A. The board may request an informal hearing with a licensee or any unlicensed person in order to further its investigation or to resolve a complaint.

B. If at an informal hearing the board finds a violation of this chapter has occurred that constitutes grounds for disciplinary action, it may take any disciplinary actions prescribed in section 32-2047, paragraph 1, 2 or 6, except that a civil penalty may not exceed $500.

C. If the results of an informal hearing indicate that suspension, revocation or a civil penalty might be in order, the board shall notify the subject of the investigation of the time and place for a hearing pursuant to title 41, chapter 6, article 10.

D. In lieu of or in addition to an informal hearing as provided in subsection A of this section, the board may serve on a licensee a summons and complaint setting forth the grounds for disciplinary action and notice of a hearing to be held before the board at least thirty days after the date of the notice. The notice shall state the time and place of the hearing.

E. A motion for rehearing or review of the board's decision in a disciplinary action shall be filed pursuant to title 41, chapter 6, article 10.

F. The service of a summons and complaint and the service of a subpoena shall be as provided for service in civil cases.

G. If a person disobeys a subpoena, the board may petition the superior court for an order requiring appearance or the production of documents.

§ 32-2047 Disciplinary actions; penalties

On proof that any grounds prescribed in section 32-2044 have been violated or that any requirements prescribed in section 32-2030 have been violated, the board may take the following disciplinary actions singly or in combination:

1. Issue a decree of censure.

2. Restrict a license or registration. The board may require a licensee or registrant to report regularly to the board on matters related to the grounds for the restricted license or registration.

3. Suspend a license or registration for a period prescribed by the board.

4. Revoke a license or registration.

5. Refuse to issue or renew a license or registration.

6. Impose a civil penalty of at least $250 but not more than $10,000 for each violation of this chapter. In addition, the board may assess and collect the reasonable costs incurred in a disciplinary hearing when action is taken against a person's license.

7. Accept a voluntary surrendering of a license or registration pursuant to an order of consent by the board.

§ 32-2048 Unlawful practice; classification; injunctive relief; deposit of civil penalties

A. It is unlawful for any person to practice or in any manner to claim to practice physical therapy or for a person to claim the designation of a physical therapist unless that person is licensed pursuant to this chapter. A person who engages in an activity requiring a license pursuant to this chapter or who uses any word, title or representation in violation of section 32-2042 that implies that the person is licensed to engage in the practice of physical therapy is guilty of a class 1 misdemeanor.

B. The board may investigate any person to the extent necessary to determine if the person is engaged in the unlawful practice of physical therapy. If an investigation indicates that a person may be practicing physical therapy unlawfully, the board shall inform the person of the alleged violation. The board may refer the matter for prosecution regardless of whether the person ceases the unlawful practice of physical therapy.

C. The board, through the appropriate county attorney or the office of the attorney general, may apply for injunctive relief in any court of competent jurisdiction to enjoin any person from committing any act in violation of this chapter. Injunction proceedings are in addition to, and not in lieu of, all penalties and other remedies prescribed in this chapter.

D. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies it collects from civil penalties pursuant to this chapter in the state general fund.

§ 32-2049 Disclosure prohibition

The board shall not disclose the identity of a person who provides information unless this information is essential to proceedings conducted pursuant to sections 32-2045 and 32-2046 or unless required by a court.

§ 32-2050 Substance abuse recovery program

In lieu of a disciplinary proceeding prescribed by this article, the board may allow a licensee to actively participate in a board-approved substance abuse recovery program if:

1. The board has evidence that the licensee is an impaired professional.

2. The licensee has not been convicted of a felony relating to a controlled substance in a court of law of the United States or any other territory or country.

3. The licensee enters into a written agreement with the board for a restricted license and complies with all of the terms of the agreement, including making satisfactory progress in the program and adhering to any limitations on the licensee's practice imposed by the board to protect the public. Failure to enter into such an agreement shall activate an immediate investigation and disciplinary proceedings by the board.

4. As part of the agreement established between the licensee and the board, the licensee signs a waiver allowing the substance abuse program to release information to the board if the licensee does not comply with the requirements of this section or is unable to practice with reasonable skill or safety.

§ 32-2051 Rights of consumers

A. The public has access to the following information:

1. A list of licensees and interim permit holders that includes the licensee's and interim permit holder's place of practice, license or interim permit number, date of license or interim permit expiration and status of license or interim permit.

2. A list of physical therapist assistants who are licensed in this state, including place of employment, license number, date of license expiration and status of license.

3. Public records.

B. The home addresses and telephone numbers of physical therapists and physical therapist assistants are not public records and shall be kept confidential by the board unless they are the only addresses and telephone numbers of record.

C. If a referring practitioner is deriving direct or indirect compensation from the referral to physical therapy, the physical therapist shall disclose this information in writing to the patient.

D. A physical therapist shall disclose in writing to a patient any financial interest in products the physical therapist endorses and recommends to the patient and shall document this disclosure in the patient's record.

E. A physical therapist shall ensure that each patient understands that the patient has freedom of choice in services and products.

F. Information relating to the physical therapist-patient relationship is confidential and shall not be communicated to a third party who is not involved in that patient's care without the prior written consent of the patient. The physical therapist shall divulge to the board information it requires in connection with any investigation, public hearing or other proceeding. The physical therapist-patient privilege does not extend to cases in which the physical therapist has a duty to report information as required by law. The confidentiality requirements and privileges of this subsection also apply to physical therapist assistants.

G. Each licensee shall display a copy of the license and current renewal verification in a location accessible to public view at the licensee's place of practice. If the licensee is unable to display the license or current renewal verification, the licensee must produce that documentation on request.

H. The board shall keep all information relating to the receipt and investigation of complaints filed against a licensee confidential unless the information is disclosed in the course of the investigation or any subsequent proceeding or if that information is required to be disclosed by law.

I. The following are confidential and are not available to the public:

1. Patient records, including clinical records, patient files and any report or oral statement relating to a diagnostic finding or treatment of a patient.

2. Any information from which a patient or a patient's family might be identified.

3. Information received and records or reports kept by the board as a result of an investigation made pursuant to this chapter.

§ 32-2052 Judicial review

Except as provided in section 41-1092.08, subsection H, final board decisions are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-2053 Physical therapy licensure compact

The physical therapy licensure compact is adopted and enacted into law as follows:

Section 1

Purpose

The purpose of this compact is to facilitate the interstate practice of physical therapy with the goal of improving public access to physical therapy services. The practice of physical therapy occurs in the state where the patient/client is located at the time of the patient/client encounter. This compact preserves the regulatory authority of states to protect the public health and safety through the current system of state licensure. This compact is designed to achieve the following objectives:

1. Increase public access to physical therapy services by providing for the mutual recognition of other member state licenses.

2. Enhance the states' ability to protect the public health and safety.

3. Encourage the cooperation of member states in regulating multistate physical therapy practice.

4. Support spouses of relocating military members.

5. Enhance the exchange of licensure, investigative and disciplinary information between member states.

6. Allow a remote state to hold a provider of services with a compact privilege in that state accountable to that state's practice standards.

Section 2

Definitions

As used in this compact, and except as otherwise provided, the following definitions shall apply:

1. "Active duty military" means full-time duty status in the active uniformed service of the United States, including members of the national guard and reserve on active duty orders pursuant to 10 United States Code section 1211.

2. "Adverse action" means disciplinary action taken by a physical therapy licensing board based on misconduct or unacceptable performance, or both.

3. "Alternative program" means a nondisciplinary monitoring or practice remediation process approved by a physical therapy licensing board, including a program relating to substance abuse issues.

4. "Compact privilege" means the authorization granted by a remote state to allow a licensee from another member state to practice as a physical therapist or work as a physical therapist assistant in the remote state under its laws and rules. The practice of physical therapy occurs in the member state where the patient/client is located at the time of the patient/client encounter.

5. "Continuing competence" means a requirement, as a condition of license renewal, to provide evidence of participation in or completion of educational and professional activities relevant to the practice or area of work.

6. "Data system" means a repository of information about licensees, including examination, licensure, investigative information, compact privilege and adverse action.

7. "Encumbered license" means a license that a physical therapy licensing board has limited in any way.

8. "Executive board" means a group of directors elected or appointed to act on behalf of, and within the powers granted by, the commission.

9. "Home state" means the member state that is the licensee's primary state of residence.

10. "Investigative information" means information, records and documents received or generated by a physical therapy licensing board pursuant to an investigation.

11. "Jurisprudence requirement" means the assessment of an individual's knowledge of the laws and rules governing the practice of physical therapy in a state.

12. "Licensee" means an individual who currently holds an authorization from the state to practice as a physical therapist or to work as a physical therapist assistant.

13. "Member state" means a state that has enacted the compact.

14. "Party state" means any member state in which a licensee holds a current license or compact privilege or is applying for a license or compact privilege.

15. "Physical therapist" means an individual who is licensed by a state to practice physical therapy.

16. "Physical therapist assistant" means an individual who is licensed or certified by a state and who assists the physical therapist in selected components of physical therapy.

17. "Physical therapy", "physical therapy practice" or "practice of physical therapy" means the care and services provided by or under the direction and supervision of a licensed physical therapist.

18. "Physical therapy compact commission" or "commission" means the national administrative body whose membership consists of all states that have enacted this compact.

19. "Physical therapy licensing board" or "licensing board" means the agency of a state that is responsible for the licensing and regulation of physical therapists and physical therapist assistants.

20. "Remote state" means a member state, other than the home state, where a licensee is exercising or seeking to exercise the compact privilege.

21. "Rule" means a regulation, principle or directive adopted by the commission that has the force of law.

22. "State" means any state, commonwealth, district or territory of the United States that regulates the practice of physical therapy.

Section 3

State participation in the compact

A. To participate in the compact, a state must do all of the following:

1. Participate fully in the commission's data system, including using the commission's unique identifier as defined in rules.

2. Have a mechanism in place for receiving and investigating complaints about licensees.

3. Notify the commission, in compliance with the terms of the compact and rules, of any adverse action or the availability of investigative information regarding a licensee.

4. Fully implement a criminal background check requirement, within a time frame established by rule, by receiving the results of the federal bureau of investigation record search on criminal background checks and use the results in making licensure decisions.

5. Comply with the rules of the commission.

6. Utilize a recognized national examination as a requirement for licensure pursuant to the rules of the commission.

7. Have continuing competence requirements as a condition for license renewal.

B. On adoption of this compact, the member state shall have the authority to obtain biometric-based information from each physical therapy licensure applicant and submit this information to the federal bureau of investigation for a criminal background check in accordance with 28 United States Code section 534 and 42 United States Code section 14616.

C. A member state shall grant the compact privilege to a licensee holding a valid unencumbered license in another member state in accordance with the terms of the compact and rules.

D. Member states may charge a fee for granting a compact privilege.

Section 4

Compact privilege

A. To exercise the compact privilege under the terms and provisions of the compact, the licensee shall meet all of the following requirements:

1. Hold a license in the home state.

2. Have no encumbrance on any state license.

3. Be eligible for a compact privilege in any member state in accordance with subsections D, G and H of this section.

4. Not have had any adverse action taken against any license or compact privilege within the previous two years.

5. Notify the commission that the licensee is seeking the compact privilege within a remote state or states.

6. Pay any applicable fees, including any state fee, for the compact privilege.

7. Meet any jurisprudence requirement established by the remote state or states in which the licensee is seeking a compact privilege.

8. Report to the commission any adverse action taken by any nonmember state within thirty days after the date the adverse action is taken.

B. The compact privilege is valid until the expiration date of the home license. The licensee must comply with the requirements of subsection A of this section to maintain the compact privilege in the remote state.

C. A licensee providing physical therapy in a remote state under the compact privilege shall function within the laws and regulations of the remote state.

D. A licensee providing physical therapy in a remote state is subject to that state's regulatory authority. A remote state, in accordance with due process and that state's laws, may remove a licensee's compact privilege in the remote state for a specific period of time, impose fines or take any other necessary actions to protect the health and safety of its citizens. The licensee is not eligible for a compact privilege in any state until the specific time for removal has passed and all fines are paid.

E. If a home state license is encumbered, the licensee shall lose the compact privilege in any remote state until both of the following occur:

1. The home state license is no longer encumbered.

2. Two years have elapsed from the date of the adverse action.

F. Once an encumbered license in the home state is restored to good standing, the licensee must meet the requirements of subsection A of this section to obtain a compact privilege in any remote state.

G. If a licensee's compact privilege in any remote state is removed, the individual shall lose the compact privilege in any remote state until all of the following occur:

1. The specific period of time for which the compact privilege was removed has ended.

2. All fines have been paid.

3. Two years have elapsed from the date of the adverse action.

H. Once the requirements of subsection G of this section have been met, the licensee must meet the requirements in subsection A of this section to obtain a compact privilege in a remote state.

Section 5

Active duty military personnel or their spouses

A licensee who is active duty military or is the spouse of an individual who is active duty military may designate one of the following as the home state:

1. The home of record.

2. The permanent change of station.

3. The state of current residence if it is different than the permanent change of station state or home of record.

Section 6

Adverse actions

A. A home state shall have exclusive power to impose an adverse action against a license issued by the home state.

B. A home state may take an adverse action based on the investigative information of a remote state, so long as the home state follows its own procedures for imposing an adverse action.

C. Nothing in this compact shall override a member state's decision that participation in an alternative program may be used in lieu of adverse action and that such participation shall remain nonpublic if required by the member state's laws. Member states must require licensees who enter any alternative programs in lieu of discipline to agree not to practice in any other member state during the term of the alternative program without prior authorization from such other member state.

D. Any member state may investigate actual or alleged violations of the statutes and rules authorizing the practice of physical therapy in any other member state in which a physical therapist or physical therapist assistant holds a license or compact privilege.

E. A remote state shall have the authority to do all of the following:

1. Take adverse actions as set forth in section 4, subsection D of this compact against a licensee's compact privilege in the state.

2. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses and the production of evidence. Subpoenas issued by a physical therapy licensing board in a party state for the attendance and testimony of witnesses or the production of evidence from another party state shall be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state where the witnesses or evidence are located.

3. If otherwise permitted by state law, recover from the licensee the costs of investigations and disposition of cases resulting from any adverse action taken against that licensee.

F. Joint investigations are as follows:

1. In addition to the authority granted to a member state by its respective physical therapy practice act or other applicable state law, a member state may participate with other member states in joint investigations of licensees.

2. Member states shall share any investigative, litigation or compliance materials in furtherance of any joint or individual investigation initiated under the compact.

Section 7

Establishment of the physical therapy compact commission

A. The compact member states hereby create and establish a joint public agency known as the physical therapy compact commission to which the following apply:

1. The commission is an instrumentality of the compact states.

2. Venue is proper and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

3. Nothing in this compact shall be construed to be a waiver of sovereign immunity.

B. Membership, voting and meetings are as follows:

1. Each member state shall have and be limited to one delegate selected by that member state's licensing board.

2. The delegate shall be a current member of the licensing board, who is a physical therapist, physical therapist assistant or public member or the board administrator.

3. Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed.

4. The member state board shall fill any vacancy occurring in the commission.

5. Each delegate shall be entitled to one vote with regard to the adoption of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the commission.

6. A delegate shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for the delegate's participation in meetings by telephone or other means of communication.

7. The commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.

C. The commission shall have the following powers and duties:

1. Establish the fiscal year of the commission.

2. Establish bylaws.

3. Maintain its financial records in accordance with the bylaws.

4. Meet and take such actions as are consistent with the provisions of this compact and the bylaws.

5. Adopt uniform rules to facilitate and coordinate implementation and administration of this compact. The rules shall have the force and effect of law and shall be binding in all member states.

6. Bring and prosecute legal proceedings or actions in the name of the commission, provided that the standing of any state physical therapy licensing board to sue or be sued under applicable law shall not be affected.

7. Purchase and maintain insurance and bonds.

8. Borrow, accept or contract for services of personnel, including employees of a member state.

9. Hire employees, elect or appoint officers, fix compensation, define duties and grant such individuals appropriate authority to carry out the purposes of the compact and to establish the commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters.

10. Accept any and all appropriate donations and grants of money, equipment, supplies, materials and services, and receive, utilize and dispose of the same, if at all times the commission avoids any appearance of impropriety or conflict of interest.

11. Lease, purchase, accept appropriate gifts or donations of or otherwise own, hold, improve or use any property, real, personal or mixed. at all times the commission shall avoid any appearance of impropriety.

12. Sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed.

13. Establish a budget and make expenditures.

14. Borrow money.

15. Appoint committees, including standing committees composed of members, state regulators, state legislators or their representatives and consumer representatives, and such other interested persons as may be designated in this compact and the bylaws.

16. Provide and receive information from, and cooperate with, law enforcement agencies.

17. Establish and elect an executive board.

18. Perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of physical therapy licensure and practice.

D. Provision for the executive board is as follows:

1. The executive board shall have the power to act on behalf of the commission according to the terms of this compact and shall be composed of the following nine members:

(a) Seven voting members who are elected by the commission from the current membership of the commission.

(b) One ex officio, nonvoting member from the recognized national physical therapy professional association.

(c) One ex officio, nonvoting member from the recognized membership organization of the physical therapy licensing boards.

2. The ex officio members will be selected by their respective organizations.

3. The commission may remove any member of the executive board as provided in bylaws.

4. The executive board shall meet at least annually.

5. The executive board shall have the following duties and responsibilities:

(a) Recommend to the entire commission changes to the rules or bylaws, to this compact legislation, to fees paid by compact member states such as annual dues and to any commission compact fee charged to licensees for the compact privilege.

(b) Ensure compact administration services are appropriately provided, contractual or otherwise.

(c) Prepare and recommend the budget.

(d) Maintain financial records on behalf of the commission.

(e) Monitor compact compliance of member states and provide compliance reports to the commission.

(f) Establish additional committees as necessary.

(g) Other duties as provided in rules or bylaws.

E. Meetings of the commission are as follows:

1. All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in section 9 of this compact.

2. The commission or the executive board or other committees of the commission may convene in a closed, nonpublic meeting if the commission or executive board or other committees of the commission must discuss any of the following:

(a) Noncompliance of a member state with its obligations under the compact.

(b) The employment, compensation or discipline of or other matters, practices or procedures related to specific employees, or other matters related to the commission's internal personnel practices and procedures.

(c) Current, threatened or reasonably anticipated litigation.

(d) The negotiation of contracts for the purchase, lease or sale of goods, services or real estate.

(e) Accusing any person of a crime or formally censuring any person.

(f) The disclosure of trade secrets or commercial or financial information that is privileged or confidential.

(g) The disclosure of information of a personal nature for which disclosure would constitute a clearly unwarranted invasion of personal privacy.

(h) The disclosure of investigative records compiled for law enforcement purposes.

(i) The disclosure of information related to any investigative report prepared by or on behalf of or for use of the commission or other committee charged with the responsibility of investigating or determining compliance issues pursuant to this compact.

(j) Matters specifically exempt from disclosure by federal or member state statute.

3. If a meeting, or portion of a meeting, is closed pursuant to this section, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision.

4. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.

F. Financing of the commission is as follows:

1. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization and ongoing activities.

2. The commission may accept any and all appropriate revenue sources, donations and grants of money, equipment, supplies, materials and services.

3. The commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated based on a formula to be determined by the commission, which shall adopt a rule that is binding on all member states.

4. The commission may not incur obligations of any kind before securing the monies adequate to meet those obligations, and the commission may not pledge the credit of any of the member states, except by and with the authority of the member state.

5. The commission shall keep accurate accounts of all of its receipts and disbursements, which are subject to the audit and accounting procedures established under its bylaws. All receipts and disbursements of monies handled by the commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the commission.

G. Qualified immunity, defense and indemnification provisions are as follows:

1. The members, officers, executive director, employees and representatives of the commission are immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities. this paragraph does not protect any such person from suit or liability for any damage, loss, injury or liability caused by the intentional or wilful or wanton misconduct of that person.

2. The commission shall defend any member, officer, executive director, employee or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities. This paragraph does not prohibit that person from retaining the person's own counsel if the actual or alleged act, error or omission did not result from that person's intentional or wilful or wanton misconduct.

3. The commission shall indemnify and hold harmless any member, officer, executive director, employee or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities if the actual or alleged act, error or omission did not result from the intentional or wilful or wanton misconduct of that person.

Section 8

Data system

A. The commission shall provide for the development, maintenance and utilization of a coordinated database and reporting system containing licensure, adverse action and investigative information on all licensed individuals in member states.

B. Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the data system on all individuals to whom this compact applies as required by the rules of the commission, including all of the following:

1. Identifying information.

2. Licensure data.

3. Adverse actions against a license or compact privilege.

4. Nonconfidential information related to alternative program participation.

5. Any denial of an application for licensure and the reason or reasons for such denial.

6. Other information that may facilitate the administration of this compact, as determined by the rules of the commission.

C. Investigative information pertaining to a licensee in any member state will only be available to other party states.

D. The commission shall promptly notify all member states of any adverse action taken against a licensee or an individual applying for a license. Adverse action information pertaining to a licensee in any member state will be available to any other member state.

E. Member states contributing information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.

F. Any information submitted to the data system that is subsequently required to be expunged by the laws of the member state contributing the information shall be removed from the data system.

Section 9

Rulemaking

A. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this section and the rules adopted under this section. Rules and amendments become binding as of the date specified in each rule or amendment.

B. If a majority of the legislatures of the member states reject a rule by enactment of a statute or resolution in the same manner used to adopt the compact within four years after the date of adoption of the rule, the rule has no further force and effect in any member state.

C. Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.

D. Before the adoption of a final rule or rules by the commission, and at least thirty days before the meeting at which the rule will be considered and voted on, the commission shall file a notice of proposed rulemaking on both:

1. The website of the commission or other publicly accessible platform.

2. The website of each member state's physical therapy licensing board or other publicly accessible platform or the publication in which each state would otherwise publish proposed rules.

E. The notice of proposed rulemaking shall include all of the following:

1. The proposed time, date and location of the meeting in which the rule will be considered and voted on.

2. The text of the proposed rule or amendment and the reason for the proposed rule.

3. A request for comments on the proposed rule from any interested person.

4. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing, and any written comments.

F. Before the adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions and arguments, which shall be made available to the public.

G. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by any of the following:

1. At least twenty-five persons.

2. A state or federal governmental subdivision or agency.

3. An association having at least twenty-five members.

H. If a hearing is held on the proposed rule or amendment, the commission shall publish the place, time and date of the scheduled public hearing. If the hearing is held via electronic means, the commission shall publish the mechanism for access to the electronic hearing. Additionally:

1. All persons wishing to be heard at the hearing shall notify the executive director of the commission or other designated member in writing of their desire to appear and testify at the hearing at least five business days before the scheduled date of the hearing.

2. Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing.

3. All hearings will be recorded. A copy of the recording will be made available on request.

4. This section does not require a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

I. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

J. If no written notice of intent to attend the public hearing by interested parties is received, the commission may proceed with the adoption of the proposed rule without a public hearing.

K. The commission, by majority vote of all members, shall take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

L. On a determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, an opportunity for comment or a hearing if the usual rulemaking procedures provided in the compact and in this section are retroactively applied to the rule as soon as reasonably possible, but not later than ninety days after the effective date of the rule. For the purposes of this subsection, an emergency rule is one that must be adopted immediately in order to do any of the following:

1. Meet an imminent threat to public health, safety or welfare.

2. Prevent a loss of commission or member state funds.

3. Meet a deadline for the adoption of an administrative rule that is established by federal law or rule.

4. Protect the public health and safety.

M. The commission or an authorized committee of the commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors. Public notice of any revisions shall be posted on the website of the commission. The revision is subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the chairperson of the commission before the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

Section 10

Oversight, dispute resolution and enforcement

A. Oversight of the commission is as follows:

1. The executive, legislative and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules adopted under this compact have standing as statutory law.

2. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact that may affect the powers, responsibilities or actions of the commission.

3. The commission is entitled to receive service of process in any such proceeding and shall have standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the commission shall render a judgment or order void as to the commission, this compact or rules adopted under this compact.

B. Default, technical assistance and termination provisions are as follows:

1. If the commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or rules adopted under this compact, the commission shall do both of the following:

(a) Provide written notice to the defaulting state and other member states of the nature of the default, the proposed means of curing the default or any other action to be taken by the commission.

(b) Provide remedial training and specific technical assistance regarding the default.

2. If a state in default fails to cure the default, the defaulting state may be terminated from the compact on an affirmative vote of a majority of the member states, and all rights, privileges and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

3. Termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the commission to the governor, the majority and minority leaders of the defaulting state's legislature and each of the member states.

4. A state that has been terminated is responsible for all assessments, obligations and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

5. The commission may not bear any costs related to a state that is found to be in default or that has been terminated from the compact, unless agreed on in writing between the commission and the defaulting state.

6. The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district where the commission has its principal offices. The prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees.

C. Dispute resolution provisions are as follows:

1. On request by a member state, the commission shall attempt to resolve disputes related to the compact that arise among member states and between member and nonmember states.

2. The commission shall adopt a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

D. Enforcement provisions are as follows:

1. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

2. By majority vote, the commission may initiate legal action in the United States district court for the District of Columbia or the federal district where the commission has its principal offices against a member state in default to enforce compliance with the provisions of the compact and its adopted rules and bylaws. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing member shall be awarded all costs of such litigation, including reasonable attorney fees.

3. The remedies in this compact are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

Section 11

Date of implementation of the interstate commission

for physical therapy practice and associated

rules, withdrawal and amendment

A. This compact is effective on the date on which the compact statute is enacted into law in the tenth member state. The provisions, which become effective at that time, shall be limited to the powers granted to the commission relating to assembly and the adoption of rules. Thereafter, the commission shall meet and exercise rulemaking powers necessary to the implementation and administration of this compact.

B. Any state that joins the compact subsequent to the commission's initial adoption of the rules is subject to the rules as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission shall have the full force and effect of law on the day the compact becomes law in that state.

C. Any member state may withdraw from this compact by enacting a statute repealing the same:

1. A member state's withdrawal shall not take effect until six months after enactment of the repealing statute.

2. Withdrawal shall not affect the continuing requirement of the withdrawing state's physical therapy licensing board to comply with the investigative and adverse action reporting requirements of this act before the effective date of withdrawal.

D. This compact does not invalidate or prevent any physical therapy licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with the provisions of this compact.

E. This compact may be amended by the member states. An amendment to this compact does not become effective and binding on any member state until it is enacted into the laws of all member states.

Section 12

Construction and severability

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or if the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact is held contrary to the constitution of any party state, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the party state affected as to all severable matters.

§ 32-2054 Participation in compact as condition of employment; prohibition

An employer may not require a physical therapist to seek licensure through the physical therapy licensure compact enacted by section 32-2053 as a condition of initial or continued employment as a physical therapist in this state. An employer may require that a physical therapist obtain and maintain a license to practice physical therapy in multiple states, if the physical therapist is free to obtain and maintain the licenses by any means authorized by the laws of the respective states.

§ 32-2055 Open meeting requirements

If a meeting, or a portion of a meeting, of the physical therapy compact commission is closed pursuant to section 32-2053, section 7, subsection E, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision consistent with title 38, chapter 3, article 3.1.

§ 32-2056 Board of physical therapy; notice of commission actions; expenditure of certain monies prohibited

The board of physical therapy:

1. Within thirty days after a physical therapy compact commission action shall post on the board's public website notice of any commission action that may affect a physical therapist's license.

2. May not spend any monies received from physical therapists or applicants for licensure who are not applying for licensure through this compact on any activities, obligations or duties required by this compact.

Chapter 19.1 Psychologists

Article 1 Board of Psychologist Examiners

§ 32-2061 Definitions

In this chapter, unless the context otherwise requires:

1. "Active license" means a valid and existing license to practice psychology.

2. "Adequate records" means records containing, at a minimum, sufficient information to identify the client or patient, the dates of service, the fee for service, the payments for service, the type of service given and copies of any reports that may have been made.

3. "Board" means the state board of psychologist examiners.

4. "Client" means a person or an entity that receives psychological services. A corporate entity, a governmental entity or any other organization may be a client if there is a professional contract to provide services or benefits primarily to an organization rather than to an individual. If an individual has a legal guardian, the legal guardian is the client for decision-making purposes, except that the individual receiving services is the client or patient for:

(a) Issues that directly affect the physical or emotional safety of the individual, such as sexual or other exploitative relationships.

(b) Issues that the guardian agrees to specifically reserve to the individual.

5. "Committee on behavior analysts" means the committee established by section 32-2091.15.

6. "Exploit" means actions by a psychologist who takes undue advantage of the professional association with a client or patient, a student or a supervisee for the advantage or profit of the psychologist.

7. "Health care institution" means a facility as defined in section 36-401.

8. "Letter of concern" means an advisory letter to notify a psychologist that while there is insufficient evidence to support disciplinary action the board believes the psychologist should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in action against the psychologist's license.

9. "Patient" means a person who receives psychological services. If an individual has a legal guardian, the legal guardian is the client or patient for decision-making purposes, except that the individual receiving services is the client or patient for:

(a) Issues that directly affect the physical or emotional safety of the individual, such as sexual or other exploitative relationships.

(b) Issues that the guardian agrees to specifically reserve to the individual.

10. "Practice of psychology" means the psychological assessment, diagnosis, treatment or correction of mental, emotional, behavioral or psychological abilities, illnesses or disorders or purporting or attempting to do this consistent with section 32-2076.

11. "Psychologically incompetent" means a person lacking in sufficient psychological knowledge or skills to a degree likely to endanger the health of clients or patients.

12. "Psychological service" means all actions of the psychologist in the practice of psychology.

13. "Psychologist" means a natural person holding a license to practice psychology pursuant to this chapter.

14. "Supervisee" means any person who functions under the extended authority of the psychologist to provide, or while in training to provide, psychological services.

15. "Telepractice" means providing psychological services through interactive audio, video or electronic communication that occurs between the psychologist and the patient or client, including any electronic communication for diagnostic, treatment or consultation purposes in a secure platform, and that meets the requirements of telehealth pursuant to section 36-3602. Telepractice includes supervision.

16. "Unprofessional conduct" includes the following activities whether occurring in this state or elsewhere:

(a) Obtaining a fee by fraud or misrepresentation.

(b) Betraying professional confidences.

(c) Making or using statements of a character tending to deceive or mislead.

(d) Aiding or abetting a person who is not licensed pursuant to this chapter in representing that person as a psychologist.

(e) Gross negligence in the practice of a psychologist.

(f) Sexual intimacies or sexual intercourse with a current client or patient or a supervisee or with a former client or patient within two years after the cessation or termination of treatment. For the purposes of this subdivision, "sexual intercourse" has the same meaning prescribed in section 13-1401.

(g) Engaging or offering to engage as a psychologist in activities that are not congruent with the psychologist's professional education, training and experience.

(h) Failing or refusing to maintain and retain adequate business, financial or professional records pertaining to the psychological services provided to a client or patient.

(i) Commission of a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

(j) Making a fraudulent or untrue statement to the board or its investigators, staff or consultants.

(k) Violating any federal or state laws or rules that relate to the practice of psychology or to obtaining a license to practice psychology.

(l) Practicing psychology while impaired or incapacitated to the extent and in a manner that jeopardizes the welfare of the client or patient or renders the psychological services provided ineffective.

(m) Using fraud, misrepresentation or deception to obtain or attempt to obtain a psychology license or to pass or attempt to pass a psychology licensing examination or in assisting another person to do so.

(n) Unprofessional conduct in another jurisdiction that resulted in censure, probation or a civil penalty or in the denial, suspension, restriction or revocation of a certificate or license to practice as a psychologist.

(o) Providing services that are unnecessary or unsafe or otherwise engaging in activities as a psychologist that are unprofessional by current standards of practice.

(p) Falsely or fraudulently claiming to have performed a professional service, charging for a service or representing a service as the licensee's own when the licensee has not rendered the service or assumed supervisory responsibility for the service.

(q) Representing activities or services as being performed under the licensee's supervision if the psychologist has not assumed responsibility for them and has not exercised control, oversight and review.

(r) Failing to obtain a client's or patient's informed and written consent to release personal or otherwise confidential information to another party unless the release is otherwise authorized by law.

(s) Failing to make client or patient records in the psychologist's possession promptly available to another psychologist who is licensed pursuant to this chapter on receipt of proper authorization to do so from the client or patient, a minor client's or patient's parent, the client's or patient's legal guardian or the client's or patient's authorized representative or failing to comply with title 12, chapter 13, article 7.1.

(t) Failing to take reasonable steps to inform or protect a client's or patient's intended victim and inform the proper law enforcement officials in circumstances in which the psychologist becomes aware during the course of providing or supervising psychological services that a client or patient intends or plans to inflict serious bodily harm on another person.

(u) Failing to take reasonable steps to protect a client or patient in circumstances in which the psychologist becomes aware during the course of providing or supervising psychological services that a client or patient intends or plans to inflict serious bodily harm on self.

(v) Abandoning or neglecting a client or patient in need of immediate care without making suitable arrangements for continuation of the care.

(w) Engaging in direct or indirect personal solicitation of clients or patients through the use of coercion, duress, undue influence, compulsion or intimidation practices.

(x) Engaging in false, deceptive or misleading advertising.

(y) Exploiting a client or patient, a student or a supervisee.

(z) Failing to report information to the board regarding a possible act of unprofessional conduct committed by another psychologist who is licensed pursuant to this chapter unless this reporting violates the psychologist's confidential relationship with the client or patient pursuant to section 32-2085. Any psychologist who reports or provides information to the board in good faith is not subject to an action for civil damages. For the purposes of this subdivision, it is not an act of unprofessional conduct if a licensee addresses an ethical conflict in a manner that is consistent with the ethical standards contained in the document entitled "ethical principles of psychologists and code of conduct" as adopted by the American psychological association and in effect at the time the licensee makes the report.

(aa) Violating a formal board order, consent agreement, term of probation or stipulated agreement issued under this chapter.

(bb) Failing to furnish information in a timely manner to the board or its investigators or representatives if requested or subpoenaed by the board as prescribed by this chapter.

(cc) Failing to make available to a client or patient or to the client's or patient's designated representative, on written request, a copy of the client's or patient's record, including raw test data, psychometric testing materials and other information as provided by law.

(dd) Violating an ethical standard adopted by the board.

§ 32-2062 Board; qualifications; appointments; terms; compensation; immunity

A. The state board of psychologist examiners is established consisting of ten members appointed by the governor pursuant to section 38-211.

B. Each member of the board shall be a citizen of the United States and a resident of this state at the time of appointment. Seven members shall be licensed pursuant to this chapter, and three shall be public members who are not eligible for licensure. The board shall have at all times, except for the period when a vacancy exists, at least two members who are licensed as psychologists and who are full-time faculty members from universities in this state with a doctoral program in psychology that meets the requirements of section 32-2071, at least three members who are psychologists in professional practice and at least two members who are behavior analysts in professional practice and who are members of the committee on behavior analysts. The public members shall not have a substantial financial interest in the health care industry and shall not have a household member who is eligible for licensure under this chapter.

C. Each member shall serve for a term of five years beginning and ending on the third Monday in January.

D. A vacancy on the board occurring other than by the expiration of term shall be filled by appointment by the governor for the unexpired term as provided in subsection C of this section. The governor, after a hearing, may remove any member of the board for misconduct, incompetency or neglect of duty.

E. Board members shall receive compensation in the amount of one hundred dollars for each cumulative eight hours of actual service in the business of the board and reimbursement of all expenses pursuant to title 38, chapter 4, article 2.

F. Members of the board and its employees, consultants and test examiners are personally immune from suit with respect to all acts done and actions taken in good faith and in furtherance of the purposes of this chapter.

§ 32-2063 Powers and duties

A. The board shall:

1. Administer and enforce this chapter and board rules.

2. Regulate disciplinary actions, the granting, denial, revocation, renewal and suspension of licenses and the rehabilitation of licensees pursuant to this chapter and board rules.

3. Prescribe the forms, content and manner of application for licensure and renewal of licensure and set deadlines for the receipt of materials required by the board.

4. Keep a record of all licensees, board actions taken on all applicants and licensees and the receipt and disbursal of monies.

5. Adopt an official seal for attesting licenses and other official papers and documents.

6. Investigate charges of violations of this chapter and board rules and orders.

7. Subject to title 41, chapter 4, article 4, employ an executive director who serves at the pleasure of the board.

8. Annually elect from among its membership a chairman, a vice chairman and a secretary, who serve at the pleasure of the board.

9. Adopt rules pursuant to title 41, chapter 6 to carry out this chapter and to define unprofessional conduct.

10. Engage in a full exchange of information with other regulatory boards and psychological associations, national psychology organizations and the Arizona psychological association and its components.

11. By rule, adopt a code of ethics relating to the practice of psychology. The board shall base this code on the code of ethics adopted and published by the American psychological association. The board shall apply the code to all board enforcement policies and disciplinary case evaluations and development of licensing examinations.

12. Adopt rules regarding the use of telepractice.

13. Before the board takes action, receive and consider recommendations from the committee on behavior analysts on all matters relating to licensing and regulating behavior analysts, as well as regulatory changes pertaining to the practice of behavior analysis, except in the case of a summary suspension of a license pursuant to section 32-2091.09, subsection E.

14. Beginning January 1, 2022, require each applicant for an initial or temporary license or a license renewal pursuant to this chapter to have applied for a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1. If an applicant is issued a valid fingerprint clearance card, the applicant shall submit the valid fingerprint clearance card to the board with the completed application. If an applicant applies for a fingerprint clearance card and is denied, the applicant may request that the board consider the application for licensure notwithstanding the absence of a valid fingerprint clearance card. The board, in its discretion, may approve an application for licensure despite the denial of a valid fingerprint clearance card if the board determines that the applicant's criminal history information on which the denial is based does not alone disqualify the applicant from licensure.

B. Subject to title 41, chapter 4, article 4, the board may employ personnel it deems necessary to carry out this chapter. The board, in investigating violations of this chapter, may employ investigators who may be psychologists. The board or its executive director may take and hear evidence, administer oaths and affirmations and compel by subpoena the attendance of witnesses and the production of books, papers, records, documents and other information relating to the investigation or hearing.

C. Subject to section 35-149, the board may accept, expend and account for gifts, grants, devises and other contributions, monies or property from any public or private source, including the federal government. The board shall deposit, pursuant to sections 35-146 and 35-147, monies received pursuant to this subsection in special funds for the purpose specified, and monies in these funds are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

D. Compensation for all personnel shall be determined pursuant to section 38-611.

§ 32-2064 Meetings; committees; quorum

A. The board shall hold regular quarterly meetings at a time and place determined by the chairman. The board shall hold special meetings the chairman determines necessary to carry out the functions of the board.

B. The chairman may establish committees from the board membership necessary to carry out the functions of the board. The board may establish committees of licensed psychologists to act as consultants to the board. Members of consultant committees are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

C. A majority of board members constitutes a quorum and a majority vote of a quorum present is necessary for the board to take any action.

§ 32-2065 Board of psychologist examiners fund; separate behavior analyst account

(L24, Ch. 222, sec. 31. Eff. until 7/1/28)

A. The board of psychologist examiners fund is established.

B. Except as provided in section 32-2081 and section 32-2091.09, subsection I, pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies collected pursuant to this chapter in the state general fund and deposit the remaining eighty-five percent in the board of psychologist examiners fund.

C. All monies deposited in the board of psychologist examiners fund are subject to section 35-143.01.

D. All monies deposited in the board of psychologist examiners fund pursuant to section 32-2067 and any monies received pursuant to section 32-2063, subsection C for psychologist licensing and regulation must be used only for licensing and regulating psychologists pursuant to this article and articles 2 and 3 of this chapter and may not be used for licensing and regulating behavior analysts pursuant to article 4 of this chapter.

E. All monies deposited in the board of psychologist examiners fund pursuant to article 4 of this chapter and any monies received pursuant to section 32-2063, subsection C for behavior analyst licensing and regulation must be used only for licensing and regulating behavior analysts pursuant to article 4 of this chapter and may not be used for licensing and regulating psychologists pursuant to this article and articles 2 and 3 of this chapter.

F. The board shall establish a separate account in the fund for monies transferred to the fund pursuant to article 4 of this chapter, and any monies received pursuant to section 32-2063, subsection C for behavior analyst licensing and regulation.

§ 32-2065 (Version 2) Board of psychologist examiners fund; separate behavior analyst account

(L24, Ch. 222, sec. 32. Eff. 7/1/28)

A. The board of psychologist examiners fund is established.

B. Except as provided in section 32-2081 and section 32-2091.09, subsection I, pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies collected pursuant to this chapter in the state general fund and deposit the remaining ninety percent in the board of psychologist examiners fund.

C. All monies deposited in the board of psychologist examiners fund are subject to section 35-143.01.

D. All monies deposited in the board of psychologist examiners fund pursuant to section 32-2067 and any monies received pursuant to section 32-2063, subsection C for psychologist licensing and regulation must be used only for licensing and regulating psychologists pursuant to this article and articles 2 and 3 of this chapter and may not be used for licensing and regulating behavior analysts pursuant to article 4 of this chapter.

E. All monies deposited in the board of psychologist examiners fund pursuant to article 4 of this chapter and any monies received pursuant to section 32-2063, subsection C for behavior analyst licensing and regulation must be used only for licensing and regulating behavior analysts pursuant to article 4 of this chapter and may not be used for licensing and regulating psychologists pursuant to this article and articles 2 and 3 of this chapter.

F. The board shall establish a separate account in the fund for monies transferred to the fund pursuant to article 4 of this chapter, and any monies received pursuant to section 32-2063, subsection C for behavior analyst licensing and regulation.

§ 32-2066 Directory; change of address; costs; civil penalty

A. The board shall compile and publish on its web site a directory containing:

1. The names and addresses of the officers and members of the board.

2. The names and addresses of all licensees.

3. The current board rules.

4. A copy of this chapter.

5. Additional information the board deems of interest and importance to licensees.

B. A licensee shall inform the board in writing of the licensee's current residence address, office address and telephone number within thirty days of each change in this information. The board may assess the costs incurred by the board in locating a licensee and may assess a civil penalty of not more than one hundred dollars against a licensee who fails to notify the board within thirty days from the date of any change of information required to be reported under this subsection.

§ 32-2067 Fees; alternative payment methods

A. The board, by a formal vote at its annual fall meeting, may establish fees and penalties that do not exceed:

1. Four hundred dollars for an application for an active license to practice psychology.

2. Two hundred dollars for an application for a temporary license to practice psychology.

3. Two hundred fifty dollars for reapplication for an active license.

4. Five hundred dollars for issuing an initial license. The board shall prorate this fee pursuant to subsection D of this section.

5. Fifty dollars for a duplicate license.

6. Five hundred dollars for biennial renewal of an active license.

7. Eighty-five dollars for biennial renewal of an inactive license.

8. Three hundred dollars for the reinstatement of an active or inactive license.

9. Three hundred fifty dollars for any additional examination.

10. Two hundred fifty dollars for delinquent compliance with continuing education requirements.

11. Five dollars for the sale of a duplicate renewal receipt.

12. Five dollars for the sale of a copy of the board's statutes and rules.

13. Two dollars for verification of a license.

14. Ten dollars for the sale of each audiotape of board meetings.

15. Five cents per name for the sale of computerized discs that contain the name of each licensee.

16. Twenty-five cents per name for the sale of computerized discs that contain the name and address of each licensee.

17. Thirty-five cents per name for the sale of customized computerized discs that contain additional licensee information that is not required by law to remain confidential.

18. Twenty-five cents per page for copying records, documents, letters, minutes, applications, files and policy statements. This fee includes postage.

B. The board may charge additional fees for services the board deems necessary and appropriate to carry out this chapter. These fees shall not exceed the actual cost of providing the service.

C. The board shall not refund fees except as provided in section 32-2073, subsection G. On special request and for good cause the board may return the license renewal fee.

D. The board shall prorate the fee for issuing an initial license by dividing the biennial renewal fee by twenty-four and multiplying that amount by the number of months that remain until the next biennial renewal date.

E. Subject to the requirements of section 41-2544, the executive director may enter into agreements to allow licensees to pay fees by alternative methods, including credit cards, charge cards, debit cards and electronic funds transfers.

Article 2 Licensure

§ 32-2071 Qualifications of applicants; education; training

A. An applicant for licensure shall have a doctoral degree from an institution of higher education in clinical or counseling psychology, school or educational psychology or any other subject area in applied psychology acceptable to the board and shall have completed a doctoral program in psychology from an educational institution that has:

1. Been accredited by one of the following regional accrediting agencies at the time of the applicant's graduation:

(a) The New England association of schools and colleges.

(b) The middle states association of colleges and schools.

(c) The north central association of colleges and schools.

(d) The northwest association of schools and colleges.

(e) The southern association of colleges and schools.

(f) The western association of schools and colleges.

2. A program that is identified and labeled as a psychology program and that stands as a recognized, coherent organizational entity within the institution with clearly identified entry and exit criteria for graduate students in the program.

3. An identifiable psychology faculty in the area of health service delivery and a psychologist responsible for the program.

4. A core program that requires each student to demonstrate competence by passing suitable comprehensive examinations or by successfully completing at least three or more graduate semester hours, five or more quarter hours or six or more trimester hours or by other suitable means in the following content areas:

(a) Scientific and professional ethics and standards in psychology.

(b) Research, which may include design, methodology, statistics and psychometrics.

(c) The biological basis of behavior, which may include physiological psychology, comparative psychology, neuropsychology, sensation and perception and psychopharmacology.

(d) The cognitive-affective basis of behavior, which may include learning, thinking, motivation and emotion.

(e) The social basis of behavior, which may include social psychology, group processes, cultural diversity and organizational and systems theory.

(f) Individual differences, which may include personality theory, human development and abnormal psychology.

(g) Assessment, which includes instruction in interviewing and administering, scoring and interpreting psychological test batteries to diagnose cognitive abilities and personality functioning.

(h) Treatment modalities, which include instruction in the theory and application of a diverse range of psychological interventions to treat mental, emotional, psychological and behavioral disorders.

5. A psychology program that leads to a doctoral degree requiring at least the equivalent of three full-time academic years of graduate study, two years of which are at the institution from which the doctoral degree is granted.

6. A requirement that the student must successfully defend a dissertation, the content of which is primarily psychological, or an equivalent project acceptable to the board.

7. Official transcripts that have been prepared solely by the institution and not by the student and, except for manifest clerical errors or grade changes, have not been altered by the institution after the student's graduation.

8. Given the student credit only for coursework that is listed on its official transcripts and that is obtained only at regionally accredited educational institutions as listed in paragraph 1 of this subsection and does not give credit for continuing education experiences or courses.

B. If the institution is located outside the United States, the applicant shall demonstrate that the program meets the requirements of subsection A, paragraphs 2 through 7 and subsections C through M of this section.

C. The applicant shall complete relevant didactic courses of the program required under subsection A, paragraph 4 of this section before starting the supervised professional experiences as described pursuant to subsection F of this section.

D. Each applicant for licensure shall obtain three thousand hours of supervised professional work experiences. The applicant shall demonstrate clearly how the applicant met this requirement. The applicant shall obtain a minimum of one thousand five hundred hours through an internship as described in subsection F of this section. The applicant shall obtain the remaining one thousand five hundred hours through any combination of the following:

1. Supervised preinternship professional experiences as described in subsection E of this section.

2. Additional internship hours as described in subsection F of this section.

3. Supervised postdoctoral experiences as described in subsection G of this section.

E. If the applicant chooses to include up to one thousand five hundred hours of supervised preinternship professional experience to satisfy a portion of the three thousand hours of supervised professional experience, the following requirements must be met:

1. The applicant's supervised preinternship professional experiences shall reflect a faculty directed, organized, sequential series of supervised experiences of increasing complexity that follows appropriate academic coursework and that prepares the applicant for an internship.

2. The applicant's supervised preinternship professional experiences shall follow appropriate academic preparation. There must be a written training plan between the student and the graduate training program. The training plan for each supervised preinternship professional experience training site must designate an allotment of time for each training activity and must ensure the quality, breadth and depth of training experience by specifying goals and objectives of the supervised preinternship professional experience, the methods of evaluation of the student and supervisory experiences. If supervision is to be completed by qualified site supervisors at external sites, their approval must be included in the plan.

3. More than one part-time supervised preinternship professional experience placement of appropriate scope and complexity over the course of the graduate training may be combined to satisfy the one thousand five hundred hours of supervised preinternship professional experiences.

4. Every twenty hours of supervised preinternship professional experience must include the following:

(a) At least fifty percent of the supervised preinternship professional experiences must be in psychological service-related activities. Psychological service-related activities may include treatment, assessment, interviews, report writing, case presentations, seminars on applied issues providing cotherapy, group supervision and consultations.

(b) At least twenty-five percent of the supervised preinternship professional experiences must be devoted to face-to-face patient-client contact.

(c) At least one hour per week of regularly scheduled contemporaneous in-person individual supervision per twenty hours of supervised preinternship professional experience that addresses the direct psychological services provided by the student.

(d) At least two hours of regularly scheduled contemporaneous supervision per twenty hours of supervised preinternship professional experience that addresses the direct psychological services provided by the student. At least fifty percent of the supervision during the total supervised preinternship professional experience shall be provided through contemporaneous in-person individual supervision. Not more than fifty percent shall be through in-person group supervision. At least seventy-five percent of the supervision shall be by a psychologist who is licensed or certified to practice psychology at the independent level by a licensing jurisdiction of the United States or Canada and who is designated by the academic program. Not more than twenty-five percent of the supervision shall be by a licensed mental health professional who is licensed or certified by a licensing jurisdiction of the United States or Canada, a psychology intern currently under the supervision of a licensed psychologist or an individual completing a postdoctoral supervised experience currently under the supervision of a licensed psychologist.

5. The applicant must provide to the board the written training plan developed by the applicant's program and documentation of the total hours accrued by the applicant during the supervised preinternship professional experience, including the number of face-to-face patient-client contact hours and the amount of supervision and qualifications of the supervisors for the entire supervised preinternship professional experiences. Documentation must include an acknowledgement that ethics training was included throughout the supervised preinternship professional experience.

6. Supervised professional preinternship experiences must be completed within seventy-two months.

F. The applicant shall have one thousand five hundred hours of supervised professional experience, which shall be either an internship that is approved by the American psychological association committee on accreditation, an internship that is a member of the association of psychology postdoctoral and internship centers or an organized training program that is designed to provide the trainee with a planned, programmed sequence of training experience, the focus and purpose of which are to ensure breadth and quality of training, and that meets the following requirements:

1. The training program has a clearly designated staff psychologist who is responsible for the integrity and quality of the training and who is licensed or certified to practice psychology at the independent level by any licensing jurisdiction of the United States or Canada in which the program exists.

2. The training program provides at least two psychologists on staff as supervisors, at least one of whom is licensed or certified to practice psychology at the independent level by a licensing jurisdiction of the United States or Canada in which the program exists and at least one of whom is directly available to the trainee in case of emergency.

3. Supervision is provided by the person who carries clinical responsibility for the cases being supervised. At least half of the training supervision shall be provided by one or more psychologists.

4. Training includes a range of assessment, consultation and treatment activities conducted directly with clients or patients.

5. A minimum of twenty-five percent of a trainee's supervised professional experience hours is in direct client or patient contact.

6. Training includes regular in-person, individual supervision conducted on a contemporaneous basis, with a minimum of one hour of in-person, individual supervision for each twenty hours of experience and with the specific intent of dealing with psychological services rendered directly by the trainee and at least two additional hours per week in other learning activities. The supervisor shall ensure that the telepractice supervision is conducted using secure, confidential real-time visual telecommunication.

7. The training program includes interaction with other psychology trainees.

8. Trainees have a title that designates their trainee status.

9. The applicant provides from the training organization a written statement that describes the goals and content of the training program and documents that clear expectations existed for the breadth, depth and quality and quantity of a trainee's work at the time of the supervised professional experience.

10. The supervised professional experience is completed within twenty-four consecutive months.

G. Not more than one thousand five hundred hours of supervised professional experience shall be postdoctoral and may start on written certification by the applicant's education program that the applicant has satisfied all requirements for the doctoral degree and on written certification that the applicant has completed an appropriate supervised professional experience as required in subsection F of this section. The applicant may complete more than one thousand five hundred hours of a supervised postdoctoral experience, but not more than one thousand five hundred hours may count towards the requirements of this subsection. The one thousand five hundred hours of supervised professional experience shall meet the following requirements:

1. Supervision is conducted by a psychologist who is licensed or certified to practice psychology at the independent level in any licensing jurisdiction of the United States or Canada in which the supervision occurs or by a psychologist who is on full-time active duty in the United States armed services and who is licensed or certified by a board of psychologist examiners in a United States jurisdiction, who has been licensed or certified for at least two years and who is competent in the areas of professional practice in which the supervisee is receiving supervised professional experience.

2. The supervisor takes full legal responsibility for the welfare of the client or patient as well as the diagnosis, intervention and outcome of the intervention and takes reasonable steps to ensure that clients or patients are informed of the supervisee's training and status and that clients or patients may meet with the supervisor at the client's or patient's request.

3. The supervisor or the appropriate custodian of records is responsible for ensuring that adequate records of client or patient contacts are maintained and that the client or patient is informed that the source of access to this information in the future is the supervisor.

4. The supervisor is fully available for consultation in the event of an emergency and provides emergency consultation coverage for the supervisee.

5. Regular in-person, individual supervision is conducted on a contemporaneous basis, with a minimum of one hour of in-person, individual supervision for each twenty hours of supervised professional experience. At least forty percent of the supervisee's time shall be in direct contact with clients or patients. The supervisor shall ensure that the telepractice supervision is conducted using secure, confidential real-time visual telecommunication technology.

6. The supervised professional experience as described in this subsection is completed within thirty-six consecutive months.

7. The applicant provides from the training organization a written training plan that describes the goals and content of the training experience and documents that clear expectations existed for the breadth, depth and quality and quantity of a trainee's work at the time of the supervised professional experience.

H. In meeting the supervised preinternship professional experience as described in subsection E of this section and the supervised professional experience as described in subsections F and G of this section, an applicant shall not receive credit for more than forty hours of experience per week.

I. An applicant who does not satisfy the supervised professional experience requirements of subsection F of this section may qualify on demonstration of twenty years' licensed or certified practice as a psychologist in a jurisdiction of the United States or Canada.

J. An applicant who does not satisfy the supervised preinternship professional experience requirements of subsection E of this section or the supervised professional experience requirements of subsection G of this section, or a combination of subsections E and G of this section, may qualify on demonstration of ten years' licensed or certified practice as a psychologist in a jurisdiction of the United States or Canada.

K. The applicant shall complete a residency at the institution that awarded the applicant's doctoral degree. The residency shall require the following:

1. The student's active participation and involvement in learning.

2. Direct regular contact with faculty and other matriculated doctoral students.

3. Eighteen semester hours or thirty quarter hours or thirty-six trimester hours completed within a twelve-month consecutive period at the institution or a minimum of three hundred hours of student-faculty contact that involves face-to-face educational meetings conducted by the institution's psychology faculty and fully documented by the institution and the student. These meetings shall include interaction between the student and faculty and the student and other students and shall relate to the program content areas specified in subsection A, paragraph 4 of this section. These meetings shall be in addition to the supervised preinternship professional experience, clerkship or externship supervision hours or dissertation hours. On request by the board, the applicant shall obtain documentation from the institution showing how the applicant's performance was assessed and documented.

L. To determine whether an applicant satisfies the requirements of subsection A of this section relating to subject areas in applied psychology, the board may require the applicant to complete a respecialization program in a program or professional school of psychology that has either an established American psychological association accredited doctoral program in clinical or counseling psychology or school or educational psychology or an established doctoral program that meets board rules. The applicant must also:

1. Meet all of the requirements of the new respecialization area. The board shall give the applicant credit for coursework that the applicant has previously successfully completed and that meets the requirements of subsection A, paragraph 4 of this section.

2. Complete one thousand five hundred hours of supervised professional experience as prescribed in subsection F of this section.

3. Present a certificate or letter from the department head, training director or dean that verifies that the applicant completed the program and that identifies the specialty area of applied psychology the applicant completed.

M. For the purposes of subsection A, paragraph 4 of this section, "other suitable means" means that an applicant demonstrates competence by being a diplomate of the American board of professional psychology or, if an applicant fails to demonstrate completion of coursework in two content areas prescribed in subsection A, paragraph 4 of this section, the applicant has fulfilled the two deficient requirements by successfully passing a graduate course in each deficient content area as a nonmatriculated student in a doctoral level psychology program at a university that is accredited pursuant to subsection A, paragraph 1 of this section.

§ 32-2071.01 Requirements for licensure; remediation; credentials

A. An applicant for licensure shall demonstrate to the board's satisfaction that the applicant:

1. Has met the education and training qualifications for licensure prescribed in section 32-2071 or subsection D of this section.

2. Has passed any examination or examinations required by section 32-2072.

3. Has a professional record that indicates that the applicant has not committed any act or engaged in any conduct that constitutes grounds for disciplinary action against a licensee pursuant to this chapter.

4. Has not had a license or a certificate to practice psychology refused, revoked, suspended or restricted by a state, territory, district or country for reasons that relate to unprofessional conduct.

5. Has not voluntarily surrendered a license in another regulatory jurisdiction in the United States or Canada while under investigation for conduct that relates to unprofessional conduct.

6. Does not have a complaint, allegation or investigation pending before another regulatory jurisdiction in the United States or Canada that relates to unprofessional conduct.

7. Beginning January 1, 2022, has applied for a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1.

B. If the board finds that an applicant committed an act or engaged in conduct that would constitute grounds for disciplinary action in this state, or if the board or any jurisdiction has taken disciplinary action against an applicant, the board may issue a license if the board first determines to its satisfaction that the act or conduct has been corrected, monitored or resolved. If the act or conduct has not been resolved before issuing a license, the board must determine to its satisfaction that mitigating circumstances exist that prevent its resolution.

C. An applicant for licensure meets the requirements of section 32-2071, subsection A, paragraphs 1, 2, 3, 4, 5, 6 and 8 if the applicant earned a doctoral degree from a program that was accredited by the American psychological association, office of program consultation and accreditation, or the psychological clinical science accreditation system at the time of graduation.

D. An applicant for licensure who is licensed to practice psychology at the independent level in another licensing jurisdiction of the United States or Canada meets the requirements of subsection A, paragraph 1 of this section if the applicant meets any of the following requirements:

1. Holds a certificate of professional qualification in psychology in good standing issued by the association of state and provincial psychology boards or its successor.

2. Is currently credentialed by the national register of health service providers in psychology or its successor and submits evidence of having practiced psychology independently at the doctoral level for a minimum of five years.

3. Is a diplomate of the American board of professional psychology.

§ 32-2072 Examinations; exemptions

A. An applicant for licensure must pass the examination for professional practice in psychology, which is the national examination established by the association of state and provincial psychology boards. An applicant is considered to have passed the national examination if the applicant's score equals or exceeds either:

1. Seventy per cent on the written examination.

2. A scaled score of five hundred on the computer-based examination.

B. The board may implement an additional examination for all applicants to cover areas of professional ethics and practice consistent with the applicant's education and experience, state law relating to the practice of psychology or other areas the board determines are suitable.

C. An applicant may not take an examination administered for or by the board until the applicant completes the education requirements of this article. The board may approve an applicant who has obtained a doctoral degree in psychology as required under section 32-2071 to take the national examination before completing the experience requirements of this article. Except as provided in subsection D of this section, an applicant may not take an additional board examination until the applicant passes the national examination. An applicant who fails the national examination administered for or by any jurisdiction three times is not eligible to take that examination again until the applicant meets additional requirements prescribed by the board.

D. An applicant is exempt from taking the national examination administered pursuant to this section if the applicant either:

1. Is a diplomate of the American board of professional psychology.

2. Holds a certificate of professional qualification in psychology in good standing issued by the association of state and provincial psychology boards or its successor.

§ 32-2073 Temporary licenses; inactive status; reinstatement to active status

A. If the board requires an additional examination, it may issue a temporary license to a psychologist licensed or certified under the laws of another jurisdiction, if the psychologist applies to the board for licensure and meets the educational, experience and first examination requirements of this article.

B. The board may issue a temporary license to an individual who submits an application for temporary licensure, who is working under supervision for postdoctoral experience and who meets the requirements of section 32-2071, subsections A, B, C and D, as applicable. The individual's postdoctoral experience must meet the requirements of section 32-2071, subsection G. The applicant shall submit the written training plan for the supervised professional experience required in section 32-2071, subsection G, paragraph 7 as part of the application for the temporary license.

C. A temporary license issued pursuant to subsection A of this section is effective from the date that the application is approved until the last day of the month in which the applicant receives the results of the additional examination as provided in section 32-2072.

D. A temporary license issued pursuant to subsection A of this section shall not be extended, renewed, reissued or allowed to continue in effect beyond the period authorized by this section.

E. A temporary license issued pursuant to subsection B of this section is effective for thirty-six months after the date the application is approved and is subject to an initial license fee pursuant to section 32-2067, subsection A, paragraph 4. A temporary license is not subject to renewal.

F. Denial of an application for licensure terminates a temporary license.

G. The board may place on inactive status and waive the license renewal fee requirements for a person who is temporarily or permanently unable to practice as a psychologist due to physical or mental incapacity or disability. An initial request for the waiver of renewal fees shall be accompanied by the renewal fee for an active license, which the board shall return if the waiver is granted. The board shall judge each request for the waiver of renewal fees on its own merits and may seek the verification it deems necessary to substantiate the facts of the situation. A psychologist who is retired is exempt from paying the renewal fee. A psychologist may request voluntary inactive status by submitting to the board an application on a form prescribed by the board and an affirmation that the psychologist shall not practice as a psychologist in this state for the duration of the voluntary inactive status and paying the required fee.

H. A psychologist who is on any form of inactive status shall renew the inactive status every two years by submitting a renewal form provided by the board and paying any applicable fee. A notice to renew is fully effective by mailing the renewal application to the licensee's last known address of record in the board's file. Notice is complete at the time of its deposit in the mail. A psychologist on inactive status due to physical or mental incapacity or disability or retirement shall use the term "inactive" to describe the person's status and shall not practice as a psychologist.

I. A psychologist on inactive status may request reinstatement of the license to active status by applying to the board. The board shall determine whether the person has been or is in violation of any provisions of this chapter and whether the person has maintained and updated the person's professional knowledge and capability to practice as a psychologist. The board may require the person to take or retake the licensure examinations and may require other knowledge or skill training experiences. If approved for active status, the person shall pay a renewal fee that equals the renewal fee for the license to be reinstated.

J. Beginning January 1, 2022, an applicant for a temporary license pursuant to this section shall have applied for a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1.

§ 32-2074 Active license; issuance; renewal; expiration; continuing education; cancellation of active license

A. If the applicant satisfies all of the requirements for licensure pursuant to this chapter, the board shall issue an active license and shall prorate the fee for issuing that license for the period remaining until the last day of the birth month of the applicant of the next odd-numbered year or even-numbered year pursuant to subsection B, paragraph 1 or 2 of this section.

B. Except as provided in section 32-4301, a person holding an active or an inactive license shall apply to renew the license on or before the last day of the birth month of the licensee every other year as follows:

1. In each odd-numbered year, if the licensee holds an odd-numbered license.

2. In each even-numbered year, if the licensee holds an even-numbered license.

C. The application shall include any applicable renewal fee. Except as provided in section 32-4301 or 41-1092.11, a license expires if the licensee fails to renew the license on or before the last day of the licensee's birth month of the licensee's renewal year pursuant to subsection B of this section. A licensee may reinstate an expired license by paying a reinstatement fee within two months after the last day of the licensee's birth month in that year. Beginning two months after the last day of the licensee's birth month during the licensee's renewal year until the last day of the licensee's birth month the following year, a licensee may reinstate the license by paying a reinstatement fee and providing proof of competency and qualifications to the board. This proof may include continuing education, an oral examination, a written examination or an interview with the board. A licensee whose license is not reinstated within a year after the last day of the licensee's birth month of the licensee's renewal year may reapply for licensure as prescribed by this chapter. A notice to renew is fully effective by mailing or electronically providing the notice to the licensee's last known address of record or last known email address of record in the board's file. Notice is complete at the time of deposit in the mail or when the email is sent.

D. A person renewing a license shall attach to the completed renewal form a report of disciplinary actions or restrictions placed against the license by another state licensing or disciplinary board or disciplinary actions or sanctions imposed by a state or national psychology ethics committee or health care institution. The report shall include the name and address of the sanctioning agency or health care institution, the nature of the action taken and a general statement of the charges leading to the action.

E. A person who renews an active license to practice psychology in this state shall satisfy a continuing education requirement designed to provide the necessary understanding of current developments, skills, procedures or treatment related to the practice of psychology in the amount and during the period the board prescribes. The board shall prescribe documentation requirements.

F. On request of an active licensee, the board may cancel the license if the licensee is not presently under investigation by the board and the board has not initiated any disciplinary proceeding against the licensee.

G. A person who applies for an initial renewal of a license pursuant to this section on or after January 1, 2022 shall possess or have applied for a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1.

§ 32-2075 Exemptions from licensure

A. This chapter does not limit the activities, services and use of a title by the following:

1. A school psychologist who is employed by or contracted to provide services in a common school, high school, charter school or other educational institution setting that serves pupils in prekindergarten or kindergarten programs or any of grades one through twelve and who is certified to use that title by the department of education if the services or activities are a part of the duties of that person's employment or contract with the common school, high school, charter school or other educational institution setting.

2. An employee of a government agency in a subdoctorate position who uses the word "assistant" or "associate" after the title and who is supervised by a doctorate position employee who is licensed as a psychologist, including a temporary licensee.

3. A student of psychology who is pursuing an official course of graduate study at an educational institution accredited as provided in section 32-2071, if after the title the word "trainee", "intern" or "extern" appears and the student uses the title only in conjunction with activities and services that are a part of the supervised program.

4. A person who resides outside of this state and who is currently licensed or certified to practice psychology at the independent level by a licensing jurisdiction of the United States or Canada if the activities and services conducted in this state are within the psychologist's customary area of practice, do not exceed twenty days per year and are not otherwise in violation of this chapter and the client or patient, the public or the consumer is informed of the limited nature of these activities and services and that the psychologist is not licensed in this state. A person may exceed the twenty-day limit of this paragraph to assist in public service that is related to a disaster as acknowledged by the board.

5. A person who is employed by Arizona state university, northern Arizona university, the university of Arizona or another regionally accredited university in this state or who is in other institutional services if the services are a part of the faculty duties of that person's salaried position, with the exception of faculty providing direct services or faculty providing supervision of students providing direct services, and the person has received a doctoral degree as provided in section 32-2071.

6. A supervisee who is pursuing a supervised professional experience pursuant to section 32-2071, subsection G if the services or activities are provided under the direct supervision of a licensed psychologist who has been licensed or certified for at least two years and who is competent in the areas of professional practice in which the supervisee is receiving supervised professional experience, if clients or patients are informed of the training nature of the services provided and if the supervisee has a title that designates that person's training status.

B. This chapter does not prevent a member of other recognized professions that are licensed, certified or regulated under the laws of this state from rendering services within that person's scope of practice and code of ethics if that person does not claim to be a psychologist.

§ 32-2076 Unauthorized practice of medicine

This chapter does not authorize a person to engage in any manner in the practice of medicine pursuant to chapter 13, 17 or 29 of this title, except that a person licensed as provided in this chapter may diagnose, treat and correct human conditions ordinarily within the scope of the practice of a psychologist.

Article 3 Regulation

§ 32-2081 Grounds for disciplinary action; duty to report; immunity; proceedings; board action; notice requirements; civil penalty

A. The board, on its own motion, may investigate evidence that appears to show that a psychologist is psychologically incompetent, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of psychology. A health care institution shall, and any other person may, report to the board information that appears to show that a psychologist is psychologically incompetent, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of psychology.

B. The board shall not consider a complaint against a psychologist arising out of a judicially ordered evaluation, treatment or psychoeducation of a person charged with violating any provision of title 13, chapter 14 to present a charge of unprofessional conduct unless the court ordering the evaluation has found a substantial basis to refer the complaint for consideration by the board.

C. A claim of unprofessional conduct brought on or after July 3, 2015 against a psychologist arising out of court-ordered services shall be independently reviewed by three members of the board, including a public member. Each of the three board members who are reviewing the claim shall independently provide the board's executive director a recommendation indicating whether the member believes there is merit to open an investigation. If one or more of the board members who are reviewing the claim determine that there is merit to open an investigation as a complaint, an investigation shall be opened and shall follow the complaint process pursuant to this article.

D. The board may not consider a complaint for administrative action if the complaint is filed against a person who is a licensed psychologist and who is a member of the board or a staff member of the board or who is acting as an agent of or consultant to the board if the complaint relates to the person's performance of board duties.

E. The board shall notify the psychologist about whom information has been received as to the content of the information within one hundred twenty days after receiving the information. A person who reports or provides information to the board in good faith is not subject to an action for civil damages. The board, if requested, shall not disclose the name of the person providing information unless this information is essential to proceedings conducted pursuant to this section. The board shall report a health care institution that fails to report as required by this section to the institution's licensing agency.

F. A health care institution shall inform the board if the privileges of a psychologist to practice in that institution are denied, revoked, suspended or limited because of actions by the psychologist that appear to show that that person is psychologically incompetent, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of psychology, along with a general statement of the reasons that led the health care institution to take this action. A health care institution shall inform the board if a psychologist under investigation resigns the psychologist's privileges or if a psychologist resigns in lieu of disciplinary action by the health care institution. Notification shall include a general statement of the reasons for the resignation.

G. The board may require the licensee to undergo any combination of mental, physical or psychological competence examinations at the licensee's expense and shall conduct investigations necessary to determine the competence and conduct of the licensee.

H. The chairperson of the board shall appoint a complaint screening committee of not less than three members of the board, including a public member. The complaint screening committee is subject to open meeting requirements pursuant to title 38, chapter 3, article 3.1. Except as provided in subsection I of this section, the complaint screening committee shall review all complaints and, based on the information provided pursuant to subsection A or F of this section, may take either of the following actions:

1. Dismiss the complaint if the committee determines that there is no evidence of a violation of law or community standards of practice. Complaints dismissed by the complaint screening committee shall not be disclosed in response to a telephone inquiry or placed on the board's website.

2. Refer the complaint to the full board for further review and action.

I. If the board finds, based on the information it receives under subsection A or F of this section, that the public health, safety or welfare requires emergency action, the board may order a summary suspension of a license pending proceedings for revocation or other action. If the board issues this order, it shall serve the licensee with a written notice of complaint and formal hearing pursuant to title 41, chapter 6, article 10, setting forth the charges made against the licensee and the licensee's right to a formal hearing before the board or an administrative law judge within sixty days.

J. If the board finds that the information provided pursuant to subsection A or F of this section is not of sufficient seriousness to merit direct action against the licensee, it may take any of the following actions:

1. Dismiss if the board believes there is no evidence of a violation of law or community standards of practice.

2. File a letter of concern.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

K. If the board believes the information provided pursuant to subsection A or F of this section is or may be true, the board may request an informal interview with the psychologist. If the licensee refuses to be interviewed or if pursuant to an interview the board determines that cause may exist to revoke or suspend the license, the board shall issue a formal complaint and hold a hearing pursuant to title 41, chapter 6, article 10. If as a result of an informal interview or a hearing the board determines that the facts do not warrant revocation or suspension of the license, the board may take any of the following actions:

1. Dismiss if the board believes there is no evidence of a violation of law or community standards of practice.

2. File a letter of concern.

3. Issue a decree of censure.

4. Fix a period and terms of probation best adapted to protect the public health and safety and to rehabilitate or educate the psychologist. Probation may include temporary suspension for a period of not more than twelve months, restriction of the license or restitution of fees to a client or patient resulting from violations of this chapter. If a licensee fails to comply with a term of probation, the board may file a complaint and notice of hearing pursuant to title 41, chapter 6, article 10 and take further disciplinary action.

5. Enter into an agreement with the licensee to restrict or limit the licensee's practice or activities in order to rehabilitate the psychologist, protect the public and ensure the psychologist's ability to safely engage in the practice of psychology.

6. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

L. If the board finds that the information provided pursuant to subsection A or F of this section warrants suspension or revocation of a license, the board shall hold a hearing pursuant to title 41, chapter 6, article 10. Notice of a complaint and hearing is fully effective by mailing a true copy to the licensee's last known address of record in the board's files. Notice is complete at the time of its deposit in the mail.

M. The board may impose a civil penalty of at least $300 but not more than $3,000 for each violation of this chapter or a rule adopted under this chapter. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies it collects from civil penalties pursuant to this subsection in the state general fund.

N. If the board determines after a hearing that a licensee has committed an act of unprofessional conduct, is mentally or physically unable to safely engage in the practice of psychology or is psychologically incompetent, it may do any of the following in any combination and for any period of time it determines necessary:

1. Suspend or revoke the license.

2. Censure the licensee.

3. Place the licensee on probation.

O. A licensee may submit a written response to the board within thirty days after receiving a letter of concern. The response is a public document and shall be placed in the licensee's file.

P. A letter of concern is a public document and may be used in future disciplinary actions against a psychologist. A decree of censure is an official action against the psychologist's license and may include a requirement that the licensee return fees to a client or patient.

Q. Except as provided in section 41-1092.08, subsection H or for a decision made pursuant to subsection C of this section, a person may appeal a final decision made pursuant to this section to the superior court pursuant to title 12, chapter 7, article 6.

R. If during the course of an investigation the board determines that a criminal violation may have occurred involving the delivery of psychological services, it shall inform the appropriate criminal justice agency.

S. If the board finds that it can take rehabilitative or disciplinary action at any time during the investigative or disciplinary process, the board may enter into a consent agreement with the psychologist to limit or restrict the psychologist's practice or to rehabilitate the psychologist in order to protect the public and ensure the psychologist's ability to safely engage in the practice of psychology. The board may also require the psychologist to successfully complete a board-approved rehabilitative, retraining or assessment program at the psychologist's expense.

T. A psychologist who conducts an independent psychological examination pursuant to section 23-1026 is not subject to a complaint of unprofessional conduct unless the complaint alleges unprofessional conduct based on an act other than a disagreement with the findings and opinions expressed by the psychologist as a result of the examination.

§ 32-2082 Right to examine and copy evidence; subpoenas; right to counsel; appeal

A. In connection with an investigation conducted pursuant to this chapter, at all reasonable times the board and its authorized agents may examine and copy documents, reports, records and other physical evidence wherever located relating to the licensee's professional competence, unprofessional conduct or mental or physical ability to safely practice psychology.

B. The board and its authorized agents may issue subpoenas to compel the attendance and testimony of witnesses and the production of documents and other physical evidence as prescribed in subsection A of this section. The board may petition the superior court to enforce a subpoena.

C. Within five days of receiving a subpoena, a person may petition the board to revoke, limit or modify the subpoena. The board shall take this action if it determines that the evidence demanded is not relevant to the investigation. The person may petition the superior court for this relief without first petitioning the board.

D. A person appearing before the board or its authorized agents may be represented by an attorney.

E. Documents associated with an investigation are not open to the public and shall remain confidential. No documents may be released without a court order compelling their production.

F. Nothing in this section or any other provision of law making communications between a psychologist and client or patient privileged applies to an investigation conducted pursuant to this chapter. The board, its employees and its agents shall keep in confidence the names of clients or patients whose records are reviewed during an investigation.

§ 32-2083 Injunction

A. The board may petition the superior court for an order to enjoin the following:

1. A person not licensed pursuant to this chapter from practicing psychology.

2. The activities of a licensee that are an immediate threat to the public.

3. Criminal activities.

B. If the board seeks an injunction to stop the unlicensed practice of psychology, it is sufficient to charge that the respondent on a certain day in a specific county engaged in the practice of psychology without a license and without being exempt from the licensure requirements of this chapter. It is not necessary to show specific damages or injury.

C. The issuance of an injunction does not limit the board's authority to take other action against a licensee pursuant to this chapter.

§ 32-2084 Violations; classification

A. It is a class 2 misdemeanor for a person not licensed pursuant to this chapter to engage in the practice of psychology.

B. It is a class 2 misdemeanor for any person to:

1. Secure a license to practice psychology pursuant to this chapter by fraud or deceit.

2. Impersonate a member of the board in order to issue a license to practice psychology.

C. It is a class 2 misdemeanor for a person not licensed pursuant to this chapter to:

1. Use the designation "psychology", "psychological" or "psychologist".

2. Use any combination of words, initials and symbols that leads the public to believe the person is licensed to practice psychology in this state.

D. It is a class 2 misdemeanor for a person not licensed or not exempt from licensure pursuant to this chapter to use the designation "psychotherapist" or other derivation of the root word "psycho".

§ 32-2085 Confidential communications

A. The confidential relations and communication between a client or patient and a psychologist licensed pursuant to this chapter, including temporary licensees, are placed on the same basis as those provided by law between an attorney and client. Unless the client or patient waives the psychologist-client privilege in writing or in court testimony, a psychologist shall not voluntarily or involuntarily divulge information that is received by reason of the confidential nature of the psychologist's practice. The psychologist shall divulge to the board information it requires in connection with any investigation, public hearing or other proceeding. The psychologist-client privilege does not extend to cases in which the psychologist has a duty to report information as required by law.

B. The psychologist shall ensure that client or patient records and communications are treated by clerical and paraprofessional staff at the same level of confidentiality and privilege required of the psychologist.

§ 32-2086 Treatment and rehabilitation program

A. The board may establish a confidential program for the treatment and rehabilitation of psychologists who are impaired. The treatment and rehabilitation may include education, intervention, therapeutic treatment and posttreatment monitoring and support. The licensee is responsible for the costs associated with the treatment and rehabilitation, including monitoring.

B. The board may contract with other organizations to operate the program established pursuant to subsection A of this section. A contract with a private organization shall include the following requirements:

1. Periodic reports to the board regarding treatment program activity.

2. Release to the board on demand of all treatment records.

3. Quarterly reports to the board regarding each psychologist's diagnosis, prognosis and recommendations for continuing care, treatment and supervision.

4. Immediate reporting to the board of the name of an impaired psychologist whom the treating organization believes to be a danger to the public or to the psychologist.

5. Reports to the board, as soon as possible, of the name of a psychologist who refuses to submit to treatment or whose impairment is not substantially alleviated through treatment.

C. The board may allocate an amount of not more than twenty dollars from each fee it collects from the biennial renewal of active licenses pursuant to section 32-2067 for the operation of the program established by this section.

D. A psychologist who is impaired and who does not agree to enter into a stipulated order with the board shall be placed on probation or shall be subject to other action as provided by law.

E. In order to determine that a psychologist who has been placed on a probation order or who has entered into a stipulation order pursuant to this section is not impaired by alcohol or illegal substances after that order is no longer in effect, the board or its designee may require the psychologist to submit to bodily fluid examinations and other examinations known to detect the presence of alcohol or illegal substances at any time within the five consecutive years following termination of the probationary or stipulated order.

F. A psychologist who is impaired by alcohol or illegal substances and who was under a board stipulation or probationary order that is no longer in effect must ask the board to place the psychologist's license on inactive status with cause. If the psychologist fails to do this, the board shall summarily suspend the license pursuant to section 32-2081. In order to reactivate the license the psychologist must successfully complete a board approved long-term care residential treatment program, an inpatient hospital treatment program or an intensive outpatient treatment program and shall meet the requirements of section 32-2074. After the psychologist completes treatment the board shall determine if it should reactivate the license without restrictions or refer the matter to a formal hearing for the purpose of suspending or revoking the license or to place the psychologist on probation with restrictions necessary to ensure the public's safety.

G. The board may revoke the license of a psychologist if that psychologist is impaired by alcohol or illegal substances and was previously placed on probation pursuant to subsection F of this section. If the licensee is no longer on probation, the board may accept the surrender of the license if the psychologist admits in writing to being impaired by alcohol or illegal substances.

H. An evaluator, treatment provider, teacher, supervisor or volunteer in the board's substance abuse treatment and rehabilitation program who acts in good faith within the scope of that program is not subject to civil liability, including malpractice liability, for the actions of a psychologist who is attending the program pursuant to board action.

§ 32-2087 Psychology interjurisdictional compact

ARTICLE I

PURPOSE

Whereas, states license psychologists in order to protect the public through verification of education, training and experience and to ensure accountability for professional practice; and

Whereas, this compact is intended to regulate the day-to-day practice of telepsychology, which is the provision of psychological services using telecommunication technologies, by psychologists across state boundaries in the performance of their psychological practice as assigned by an appropriate authority; and

Whereas, this compact is intended to regulate the temporary in-person, face-to-face practice of psychology by psychologists across state boundaries for thirty days within a calendar year in the performance of their psychological practice as assigned by an appropriate authority;

Whereas, this compact is intended to authorize state psychology regulatory authorities to afford legal recognition, in a manner consistent with the terms of the compact, to psychologists licensed in another state;

Whereas, this compact recognizes that states have a vested interest in protecting the public's health and safety through their licensing and regulation of psychologists and that such state regulation will best protect public health and safety;

Whereas, this compact does not apply when a psychologist is licensed in both the home and receiving states; and

Whereas, this compact does not apply to permanent in-person, face-to-face practice, but it does allow for authorization of temporary psychological practice.

Consistent with these principles, this compact is designed to achieve the following purposes and objectives:

1. Increase public access to professional psychological services by allowing for telepsychological practice across state lines as well as temporary in-person, face-to-face services into a state where the psychologist is not licensed to practice psychology;

2. Enhance the states' ability to protect the public's health and safety, especially client/patient safety;

3. Encourage the cooperation of compact states in the areas of psychology licensure and regulation;

4. Facilitate the exchange of information between compact states regarding psychologist licensure, adverse actions and disciplinary history;

5. Promote compliance with the laws governing psychological practice in each compact state; and

6. Invest all compact states with the authority to hold licensed psychologists accountable through the mutual recognition of compact state licenses.

ARTICLE II

DEFINITIONS

As used in this compact:

A. "Adverse action" means any action that is taken by a state psychology regulatory authority that finds a violation of a statute or regulation, that is identified by the state psychology regulatory authority as discipline and that is a matter of public record.

B. "Association of state and provincial psychology boards" or "ASPPB" means the recognized membership organization composed of state and provincial psychology regulatory authorities responsible for the licensure and registration of psychologists throughout the United States and Canada.

C. "Authority to practice interjurisdictional telepsychology" means a licensed psychologist's authority to practice telepsychology, within the limits authorized under this compact, in another compact state.

D. "Bylaws" means those bylaws established by the psychology interjurisdictional compact commission pursuant to article X of this compact for its governance or for directing and controlling its actions and conduct.

E. "Client/patient" means the recipient of psychological services, whether psychological services are delivered in the context of health care, corporate, supervision or consulting services.

F. "Commissioner" means the voting representative appointed by each state psychology regulatory authority pursuant to article X of this compact.

G. "Compact state" means a state, the District of Columbia, or a United States territory that has enacted this compact legislation and that has not withdrawn pursuant to article XIII, subsection C or been terminated pursuant to article XII, subsection B.

H. "Confidentiality" means the principle that data or information is not made available or disclosed to unauthorized persons or processes.

I. "Coordinated licensure information system" or "coordinated database" means an integrated process for collecting, storing and sharing information on psychologists' licensure and enforcement activities related to psychology licensure laws that is administered by the recognized membership organization composed of state and provincial psychology regulatory authorities.

J. "Day" means any part of a day in which psychological work is performed.

K. "Distant state" means the compact state where a psychologist is physically present, not through the use of telecommunications technologies, to provide temporary in-person, face-to-face psychological services.

L. "E.Passport" means a certificate issued by the association of state and provincial psychology boards that promotes the standardization in the criteria of interjurisdictional telepsychology practice and facilitates the process for licensed psychologists to provide telepsychological services across state lines.

M. "Executive board" means a group of directors elected or appointed to act on behalf of, and within the powers granted to them by, the commission.

N. "Home state" means a compact state where a psychologist is licensed to practice psychology. if the psychologist is licensed in more than one compact state and is practicing under the authorization to practice interjurisdictional telepsychology, the home state is the compact state where the psychologist is physically present when the telepsychological services are delivered. If the psychologist is licensed in more than one compact state and is practicing under the temporary authorization to practice, the home state is any compact state where the psychologist is licensed.

O. "Identity history summary" means a summary of information retained by the federal bureau of investigation or another designee with similar authority in connection with arrests and in some instances, federal employment, naturalization or military service.

P. "In-person, face-to-face" means interactions in which the psychologist and the client/patient are in the same physical space and does not include interactions that may occur through the use of telecommunication technologies.

Q. "Interjurisdictional practice certificate" or "IPC" means a certificate issued by the association of state and provincial psychology boards that grants temporary authority to practice based on notification to the state psychology regulatory authority of intention to practice temporarily, and verification of one's qualifications for such practice.

R. "License" means authorization by a state psychology regulatory authority to engage in the independent practice of psychology, which would be unlawful without the authorization.

S. "Non-compact state" means any state that is not at the time a compact state.

T. "Psychologist" means an individual who is licensed for the independent practice of psychology.

U. "Psychology interjurisdictional compact commission" or "commission" means the national administration of which all compact states are members.

V. "Receiving state" means a compact state where the client/patient is physically located when the telepsychological services are delivered.

W. "Rule" means a written statement by the psychology interjurisdictional compact commission promulgated pursuant to article XI of this compact that is of general applicability, that implements, interprets or prescribes a policy or provision of the compact or an organizational, procedural or practice requirement of the commission and that has the force and effect of statutory law in a compact state, and includes the amendment, repeal or suspension of an existing rule.

X. "Significant investigatory information" means either of the following:

1. Investigative information that a state psychology regulatory authority, after a preliminary inquiry that includes notification and an opportunity to respond if required by state law, has reason to believe, if proven true, would indicate more than a violation of state statute or ethics code that would be considered more substantial than a minor infraction.

2. Investigative information that indicates that the psychologist represents an immediate threat to public health and safety regardless of whether the psychologist has been notified or had an opportunity to respond.

Y. "State" means a state, commonwealth, territory or possession of the United States or the District of Columbia.

Z. "State psychology regulatory authority" means the board, office or other agency with the legislative mandate to license and regulate the practice of psychology.

AA. "Telepsychology" means the provision of psychological services using telecommunication technologies.

BB. "Temporary authorization to practice" means a licensed psychologist's authority to conduct temporary in-person, face-to-face practice, within the limits authorized under this compact, in another compact state.

CC. "Temporary in-person, face-to-face practice" means that a psychologist is physically present, not through the use of telecommunications technologies, in the distant state to provide for the practice of psychology for thirty days within a calendar year, based on notification to the distant state.

ARTICLE III

HOME STATE LICENSURE

A. The home state shall be a compact state where a psychologist is licensed to practice psychology.

B. A psychologist may hold one or more compact state licenses at a time. If the psychologist is licensed in more than one compact state, the home state is the compact state where the psychologist is physically present when the services are delivered as authorized by the authority to practice interjurisdictional telepsychology under the terms of this compact.

C. Any compact state may require a psychologist who has not been previously licensed in a compact state to obtain and retain a license to be authorized to practice in the compact state under circumstances not authorized by the authority to practice interjurisdictional telepsychology under the terms of this compact.

D. Any compact state may require a psychologist to obtain and retain a license to be authorized to practice in a compact state under circumstances not authorized by temporary authorization to practice under the terms of this compact.

E. A home state's license authorizes a psychologist to practice in a receiving state under the authority to practice interjurisdictional telepsychology only if the compact state:

1. Currently requires the psychologist to hold an active E.Passport;

2. Has a mechanism in place for receiving and investigating complaints about licensed individuals;

3. Notifies the commission, in compliance with the terms in this compact, of any adverse action or significant investigatory information regarding a licensed individual;

4. Requires an identity history summary of all applicants at initial licensure, including the use of the results of fingerprints or other biometric data checks compliant with the requirements of the federal bureau of investigation or another designee with similar authority, no later than ten years after activation of the compact; and

5. Complies with the bylaws and rules of the commission.

F. A home state's license grants temporary authorization to practice to a psychologist in a distant state only if the compact state:

1. Currently requires the psychologist to hold an active IPC;

2. Has a mechanism in place for receiving and investigating complaints about licensed individuals;

3. Notifies the commission, in compliance with the terms in this compact, of any adverse action or significant investigatory information regarding a licensed individual;

4. Requires an identity history summary of all applicants at initial licensure, including the use of the results of fingerprints or other biometric data checks compliant with the requirements of the federal bureau of investigation or another designee with similar authority, no later than ten years after activation of the compact; and

5. Complies with the bylaws and rules of the commission.

ARTICLE IV

COMPACT PRIVILEGE TO PRACTICE TELEPSYCHOLOGY

A. Compact states shall recognize the right of a psychologist who is licensed in a compact state in conformance with article III of this compact to practice telepsychology in other compact states, or receiving states, in which the psychologist is not licensed, under the authority to practice interjurisdictional telepsychology as provided in this compact.

B. To exercise the authority to practice interjurisdictional telepsychology under the terms and provisions of this compact, a psychologist licensed to practice in a compact state must meet all of the following:

1. Hold a graduate degree in psychology from an institute of higher education that was, at the time the degree was awarded:

(a) Regionally accredited by an accrediting body recognized by the United States department of education to grant graduate degrees or authorized by provincial statute or royal charter to grant doctoral degrees; or

(b) A foreign college or university deemed to be equivalent to subdivision (a) of this paragraph by a foreign credential evaluation service that is a member of the national association of credential evaluation services or by a recognized foreign credential evaluation service; and

2. Hold a graduate degree in psychology that meets the following criteria:

(a) The program, wherever it may be administratively housed, must be clearly identified and labeled as a psychology program. Such a program must specify in pertinent institutional catalogues and brochures its intent to educate and train professional psychologists;

(b) The psychology program must stand as a recognizable, coherent, organizational entity within the institution;

(c) There must be a clear authority and primary responsibility for the core and specialty areas whether or not the program cuts across administrative lines;

(d) The program must consist of an integrated, organized sequence of study;

(e) There must be an identifiable psychology faculty sufficient in size and breadth to carry out its responsibilities;

(f) The designated director of the program must be a psychologist and a member of the core faculty;

(g) The program must have an identifiable body of students who are matriculated in that program for a degree;

(h) The program must include supervised practicum, internship or field training appropriate to the practice of psychology;

(i) The curriculum shall encompass a minimum of three academic years of full-time graduate study for doctoral degrees and a minimum of one academic year of full-time graduate study for master's degrees;

(j) The program includes an acceptable residency as defined by the rules of the commission.

3. Possess a current, full and unrestricted license to practice psychology in a home state that is a compact state;

4. Have no history of adverse action that violates the rules of the commission;

5. Have no criminal record history reported on an identity history summary that violates the rules of the commission;

6. Possess a current, active E.Passport;

7. Provide attestations in regard to areas of intended practice, conformity with standards of practice, competence in telepsychology technology, criminal background and knowledge and adherence to legal requirements in the home and receiving states, and provide a release of information to allow for primary source verification in a manner specified by the commission; and

8. Meet other criteria as defined by the rules of the commission.

C. The home state maintains authority over the license of the psychologist practicing into a receiving state under the authority to practice telepsychology.

D. A psychologist practicing into a receiving state under the authority to practice interjurisdictional telepsychology will be subject to the receiving state's scope of practice. A receiving state may, in accordance with that state's due process law, limit or revoke a psychologist's authority to practice interjurisdictional telepsychology in the receiving state and may take any other necessary actions under the receiving state's applicable law to protect the health and safety of the receiving state's citizens. If a receiving state takes action, the state shall promptly notify the home state and the commission.

E. If a psychologist's license in any home state or another compact state, or any authority to practice interjurisdictional telepsychology in any receiving state, is restricted, suspended or otherwise limited, the E.Passport shall be revoked and the psychologist is not eligible to practice telepsychology in a compact state under the authority to practice interjurisdictional telepsychology.

ARTICLE V

COMPACT TEMPORARY AUTHORIZATION TO PRACTICE

A. Compact states shall also recognize the right of a psychologist who is licensed in a compact state in conformance with article III of this compact to practice temporarily in other compact states, or distant states, in which the psychologist is not licensed, as provided in this compact.

B. To exercise the temporary authorization to practice under the terms and provisions of this compact, a psychologist licensed to practice in a compact state must meet all of the following:

1. Hold a graduate degree in psychology from an institute of higher education that was, at the time the degree was awarded:

(a) Regionally accredited by an accrediting body recognized by the United States department of education to grant graduate degrees, or authorized by provincial statute or royal charter to grant doctoral degrees; or

(b) A foreign college or university deemed to be equivalent to subdivision (a) of this paragraph by a foreign credential evaluation service that is a member of the national association of credential evaluation services or by a recognized foreign credential evaluation service; and

2. Hold a graduate degree in psychology that meets the following criteria:

(a) The program, wherever it may be administratively housed, must be clearly identified and labeled as a psychology program. Such a program must specify in pertinent institutional catalogues and brochures its intent to educate and train professional psychologists;

(b) The psychology program must stand as a recognizable, coherent, organizational entity within the institution;

(c) There must be a clear authority and primary responsibility for the core and specialty areas whether or not the program cuts across administrative lines;

(d) The program must consist of an integrated, organized sequence of study;

(e) There must be an identifiable psychology faculty sufficient in size and breadth to carry out its responsibilities;

(f) The designated director of the program must be a psychologist and a member of the core faculty;

(g) The program must have an identifiable body of students who are matriculated in that program for a degree;

(h) The program must include supervised practicum, internship or field training appropriate to the practice of psychology;

(i) The curriculum shall encompass a minimum of three academic years of full-time graduate study for doctoral degrees and a minimum of one academic year of full-time graduate study for master's degrees;

(j) The program includes an acceptable residency as defined by the rules of the commission.

3. Possess a current, full and unrestricted license to practice psychology in a home state that is a compact state;

4. Have no history of adverse action that violates the rules of the commission;

5. Have no criminal record history that violates the rules of the commission;

6. Possess a current, active IPC;

7. Provide attestations in regard to areas of intended practice and work experience and provide a release of information to allow for primary source verification in a manner specified by the Commission; and

8. Meet other criteria as defined by the rules of the commission.

C. A psychologist practicing into a distant state under the temporary authorization to practice shall practice within the scope of practice authorized by the distant state.

D. A psychologist practicing into a distant state under the temporary authorization to practice will be subject to the distant state's authority and law. A distant state may, in accordance with that state's due process law, limit or revoke a psychologist's temporary authorization to practice in the distant state and may take any other necessary actions under the distant state's applicable law to protect the health and safety of the distant state's citizens. If a distant state takes action, the state shall promptly notify the home state and the commission.

E. If a psychologist's license in any home state or another compact state, or any temporary authorization to practice in any distant state, is restricted, suspended or otherwise limited, the IPC shall be revoked and the psychologist is not eligible to practice in a compact state under the temporary authorization to practice.

ARTICLE VI

CONDITIONS OF TELEPSYCHOLOGY PRACTICE

IN A RECEIVING STATE

A psychologist may practice in a receiving state under the authority to practice interjurisdictional telepsychology only in the performance of the scope of practice for psychology as assigned by an appropriate state psychology regulatory authority, as defined in the rules of the commission, and under the following circumstances:

1. The psychologist initiates a client/patient contact in a home state via telecommunications technologies with a client/patient in a receiving state;

2. Other conditions regarding telepsychology as determined by rules promulgated by the commission.

ARTICLE VII

ADVERSE ACTIONS

A. A home state shall have the power to impose adverse action against a psychologist's license issued by the home state. A distant state shall have the power to take adverse action on a psychologist's temporary authorization to practice within that distant state.

B. A receiving state may take adverse action on a psychologist's authority to practice interjurisdictional telepsychology within that receiving state. A home state may take adverse action against a psychologist based on an adverse action taken by a distant state regarding temporary in-person, face-to-face practice.

C. If a home state takes adverse action against a psychologist's license, that psychologist's authority to practice interjurisdictional telepsychology is terminated and the E.Passport is revoked. Furthermore, that psychologist's temporary authorization to practice is terminated and the IPC is revoked as follows:

1. All home state disciplinary orders that impose adverse action shall be reported to the commission in accordance with the rules promulgated by the commission. A compact state shall report adverse actions in accordance with the rules of the commission.

2. In the event discipline is reported on a psychologist, the psychologist will not be eligible for telepsychology or temporary in-person, face-to-face practice in accordance with the rules of the commission.

3. Other actions may be imposed as determined by the rules of the commission.

D. A home state's psychology regulatory authority shall investigate and take appropriate action with respect to reported inappropriate conduct engaged in by a licensee that occurred in a receiving state as it would if such conduct had occurred by a licensee within the home state. In such cases, the home state's law shall control in determining any adverse action against a psychologist's license.

E. A distant state's psychology regulatory authority shall investigate and take appropriate action with respect to reported inappropriate conduct engaged in by a psychologist practicing under temporary authorization practice which occurred in that distant state as it would if such conduct had occurred by a licensee within the home state. In such cases, the distant state's law shall control in determining any adverse action against a psychologist's temporary authorization to practice.

F. Nothing in this compact shall override a compact state's decision that a psychologist's participation in an alternative program may be used in lieu of adverse action and that such participation shall remain nonpublic if required by the compact state's law. Compact states must require psychologists who enter any alternative programs to not provide telepsychology services under the authority to practice interjurisdictional telepsychology or provide temporary psychological services under the temporary authorization to practice in any other compact state during the term of the alternative program.

G. No other judicial or administrative remedies shall be available to a psychologist in the event a compact state imposes an adverse action pursuant to subsection C of this article.

ARTICLE VIII

ADDITIONAL AUTHORITIES INVESTED IN A COMPACT

STATE'S PSYCHOLOGY REGULATORY AUTHORITY

A. In addition to any other powers granted under state law, a compact state's psychology regulatory authority shall have the authority under this compact to:

1. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses and the production of evidence. Subpoenas issued by a compact state's psychology regulatory authority for the attendance and testimony of witnesses or the production of evidence from another compact state shall be enforced in the latter state by any court of competent jurisdiction, according to that court's practice and procedure in considering subpoenas issued in its own proceedings. The issuing state psychology regulatory authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state where the witnesses or evidence are located; and

2. Issue cease and desist or injunctive relief orders to revoke a psychologist's authority to practice interjurisdictional telepsychology and/or temporary authorization to practice.

B. During the course of any investigation, a psychologist may not change the psychologist's home state licensure. A home state psychology regulatory authority is authorized to complete any pending investigations of a psychologist and to take any actions appropriate under its law. The home state psychology regulatory authority shall promptly report the conclusions of such investigations to the commission. Once an investigation has been completed, and pending the outcome of said investigation, the psychologist may change the psychologist's home state licensure. The commission shall promptly notify the new home state of any such decisions as provided in the rules of the commission. All information provided to the commission or distributed by compact states pursuant to the psychologist shall be confidential, filed under seal and used for investigatory or disciplinary matters. The commission may create additional rules for mandated or discretionary sharing of information by compact states.

ARTICLE IX

COORDINATED LICENSURE INFORMATION SYSTEM

A. The commission shall provide for the development and maintenance of a coordinated database and reporting system containing licensure and disciplinary action information on all psychologists or individuals to whom this compact is applicable in all compact states as defined by the rules of the commission.

B. Notwithstanding any other provision of state law to the contrary, a compact state shall submit a uniform data set to the coordinated database on all licensees as required by the rules of the commission, including:

1. Identifying information;

2. Licensure data;

3. Significant investigatory information;

4. Adverse actions against a psychologist's license;

5. An indicator that a psychologist's authority to practice interjurisdictional telepsychology and/or temporary authorization to practice is revoked;

6. Nonconfidential information related to alternative program participation information;

7. Any denial of application for licensure and the reasons for such denial; and

8. Other information that may facilitate the administration of this compact, as determined by the rules of the commission.

C. The coordinated database administrator shall promptly notify all compact states of any adverse action taken against, or significant investigative information on, any licensee in a compact state.

D. Compact States reporting information to the coordinated database may designate information that may not be shared with the public without the express permission of the compact state reporting the information.

E. Any information submitted to the coordinated database that is subsequently required to be expunged by the law of the compact state reporting the information shall be removed from the coordinated database.

ARTICLE X

ESTABLISHMENT OF THE PSYCHOLOGY INTERJURISDICTIONAL

COMPACT COMMISSION

A. The compact states hereby create and establish a joint public agency known as the psychology interjurisdictional compact commission as follows:

1. The commission is a body politic and an instrumentality of the compact states.

2. Venue is proper and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

3. Nothing in this compact shall be construed to be a waiver of sovereign immunity.

B. Membership, Voting and Meetings are as follows:

1. The commission shall consist of one voting representative appointed by each compact state who shall serve as that state's commissioner. The state psychology regulatory authority shall appoint its delegate. This delegate shall be empowered to act on behalf of the compact state. This delegate shall be limited to:

(a) The executive director or executive secretary or a similar executive;

(b) A current member of the state psychology regulatory authority of a compact state; or

(c) A designee empowered with the appropriate delegate authority to act on behalf of the compact state.

2. Any commissioner may be removed or suspended from office as provided by the law of the state from which the commissioner is appointed. Any vacancy occurring in the commission shall be filled in accordance with the laws of the compact state in which the vacancy exists.

3. Each commissioner shall be entitled to one vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the commission. A commissioner shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for commissioners' participation in meetings by telephone or other means of communication.

4. The commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.

5. All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in article XI of this compact.

6. The commission may convene in a closed, nonpublic meeting if the commission must discuss:

(a) Noncompliance of a compact state with its obligations under the compact;

(b) The employment, compensation, discipline or other personnel matters, practices or procedures related to specific employees or other matters related to the commission's internal personnel practices and procedures;

(c) Current, threatened or reasonably anticipated litigation against the commission;

(d) The negotiation of contracts for the purchase or sale of goods, services or real estate;

(e) An accusation against any person of a crime or formally censuring any person;

(f) The disclosure of trade secrets or commercial or financial information that is privileged or confidential;

(g) The disclosure of information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

(h) The disclosure of investigatory records compiled for law enforcement purposes;

(i) The disclosure of information related to any investigatory reports prepared by or on behalf of or for use of the commission or another committee charged with responsibility for investigation or determination of compliance issues pursuant to the compact; or

(j) Matters specifically exempted from disclosure by federal and state statute.

7. If a meeting, or portion of a meeting, is closed pursuant to this provision, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, of any person participating in the meeting, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release only by a majority vote of the commission or order of a court of competent jurisdiction.

C. The commission shall, by a majority vote of the commissioners, prescribe bylaws or rules to govern its conduct as may be necessary or appropriate to carry out the purposes and exercise the powers of this compact, including:

1. Establishing the fiscal year of the commission;

2. Providing reasonable standards and procedures:

(a) For the establishment and meetings of other committees; and

(b) Governing any general or specific delegation of any authority or function of the commission;

3. Providing reasonable procedures for calling and conducting meetings of the commission, ensuring reasonable advance notice of all meetings and providing an opportunity for attendance of such meetings by interested parties, with enumerated exceptions designed to protect the public's interest, the privacy of individuals of such proceedings and proprietary information, including trade secrets. The commission may meet in closed session only after a majority of the commissioners vote to close a meeting to the public in whole or in part. As soon as practicable, the commission must make public a copy of the vote to close the meeting revealing the vote of each commissioner with no proxy votes allowed;

4. Establishing the titles, duties and authority and reasonable procedures for the election of the officers of the commission;

5. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the commission. Notwithstanding any civil service or other similar law of any compact state, the bylaws shall exclusively govern the personnel policies and programs of the commission;

6. Promulgating a code of ethics to address permissible and prohibited activities of commission members and employees;

7. Providing a mechanism for concluding the operations of the commission and the equitable disposition of any surplus funds that may exist after the termination of the compact and after the payment and/or reserving of all of its debts and obligations;

8. The commission shall publish its bylaws in a convenient form and file a copy thereof and a copy of any amendment thereto, with the appropriate agency or officer in each of the compact states;

9. The commission shall maintain its financial records in accordance with the bylaws; and

10. The commission shall meet and take such actions as are consistent with the provisions of this compact and the bylaws.

D. The commission shall have the following powers:

1. To promulgate uniform rules to facilitate and coordinate implementation and administration of this compact. The rule shall have the force and effect of law and shall be binding in all compact states;

2. To bring and prosecute legal proceedings or actions in the name of the commission, provided that the standing of any state psychology regulatory authority or other regulatory body responsible for psychology licensure to sue or be sued under applicable law shall not be affected;

3. To purchase and maintain insurance and bonds;

4. To borrow, accept or contract for services of personnel, including employees of a compact state;

5. To hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of the compact and establish the commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel and other related personnel matters;

6. To accept any and all appropriate donations and grants of money, equipment, supplies, materials and services, and to receive, utilize and dispose of the same, provided that at all times the commission shall strive to avoid any appearance of impropriety or conflict of interest;

7. To lease, purchase, accept appropriate gifts or donations of, or otherwise own, hold, improve or use, any property, real, personal or mixed, provided that at all times the commission shall strive to avoid any appearance of impropriety;

8. To sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed;

9. To establish a budget and make expenditures;

10. To borrow money;

11. To appoint committees, including advisory committees composed of members, state regulators, state legislators or their representatives, and consumer representatives, and such other interested persons as may be designated in this compact and the bylaws;

12. To provide and receive information from, and to cooperate with, law enforcement agencies;

13. To adopt and use an official seal; and

14. To perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of psychology licensure, temporary in-person, face-to-face practice and telepsychology practice.

E. The elected officers shall serve as the executive board, which shall have the power to act on behalf of the commission according to the terms of this compact as follows:

1. The executive board shall be composed of the following six members:

(a) Five voting members who are elected from the current membership of the commission by the commission;

(b) One ex officio, nonvoting member from the recognized membership organization composed of state and provincial psychology regulatory authorities.

2. The ex officio member must have served as staff with or a member on a state psychology regulatory authority and will be selected by its respective organization.

3. The commission may remove any member of the executive board as provided in bylaws.

4. The Executive Board shall meet at least annually.

5. The executive board shall have the following duties and responsibilities:

(a) Recommend to the entire commission changes to the rules or bylaws, changes to this compact, fees paid by compact states such as annual dues, and any other applicable fees;

(b) Ensure compact administration services are appropriately provided, contractual or otherwise;

(c) Prepare and recommend the budget;

(d) Maintain financial records on behalf of the commission;

(e) Monitor compact compliance of member states and provide compliance reports to the commission;

(f) Establish additional committees as necessary; and

(g) Other duties as provided in rules or bylaws.

F. The financing of the commission shall be as follows:

1. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization and ongoing activities.

2. The commission may accept any and all appropriate revenue sources, donations and grants of money, equipment, supplies, materials and services.

3. The commission may levy on and collect an annual assessment from each compact state or impose fees on other parties to cover the cost of the operations and activities of the commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated based on a formula to be determined by the commission, which shall promulgate a rule binding on all compact states.

4. The commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same, nor shall the commission pledge the credit of any of the compact states, except by and with the authority of the compact state.

5. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the commission.

G. Qualified immunity, defense and indemnification provisions are as follows:

1. The members, officers, executive director, employees and representatives of the commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities, except that nothing in this paragraph shall be construed to protect any such person from suit or liability for any damage, loss, injury or liability caused by the intentional or wilful or wanton misconduct of that person.

2. The commission shall defend any member, officer, executive director, employee or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities, except that nothing in this paragraph shall be construed to prohibit that person from retaining his or her own counsel, and provided further, that the actual or alleged act, error or omission did not result from that person's intentional or wilful or wanton misconduct.

3. The commission shall indemnify and hold harmless any member, officer, executive director, employee or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities, if the actual or alleged act, error or omission did not result from the intentional or wilful or wanton misconduct of that person.

ARTICLE XI

RULEMAKING

A. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this article and the rules adopted under this article. Rules and amendments shall become binding as of the date specified in each rule or amendment.

B. If a majority of the legislatures of the compact states reject a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, that rule shall have no further force and effect in any compact state.

C. Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.

D. Prior to promulgation and adoption of a final rule or rules by the commission, and at least sixty days in advance of the meeting at which the rule will be considered and voted on, the commission shall file a notice of proposed rulemaking:

1. On the website of the commission; and

2. On the website of each compact state's psychology regulatory authority or the publication in which each state would otherwise publish proposed rules.

E. The notice of proposed rulemaking shall include:

1. The proposed time, date and location of the meeting in which the rule will be considered and voted on;

2. The text of the proposed rule or amendment and the reason for the proposed rule;

3. A request for comments on the proposed rule from any interested person; and

4. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

F. Prior to adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions and arguments, which shall be made available to the public.

G. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by:

1. At least twenty-five persons who submit comments independently of each other;

2. A governmental subdivision or agency; or

3. A duly appointed person in an association that has at least twenty-five members.

H. If a hearing is held on the proposed rule or amendment, the commission shall publish the place, time and date of the scheduled public hearing. The following apply to a hearing:

1. All persons wishing to be heard at the hearing shall notify the executive director of the commission or other designated member in writing of their desire to appear and testify at the hearing not less than five business days before the scheduled date of the hearing.

2. Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing.

3. No transcript of the hearing is required, unless a written request for a transcript is made, in which case the person requesting the transcript shall bear the cost of producing the transcript. A recording may be made in lieu of a transcript under the same terms and conditions as a transcript. This paragraph does not preclude the commission from making a transcript or recording of the hearing if it so chooses.

4. Nothing in this subsection shall be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this subsection.

I. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

J. The commission, by majority vote of all members, shall take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

K. If no written notice of intent to attend the public hearing by interested parties is received, the commission may proceed with promulgation of the proposed rule without a public hearing.

L. On a determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment or hearing, provided that the usual rulemaking procedures provided in the compact and in this section shall be retroactively applied to the rule as soon as reasonably practicable but not later than ninety days after the effective date of the rule. For the purposes of this subsection, an emergency rule is one that must be adopted immediately in order to:

1. Meet an imminent threat to public health, safety or welfare;

2. Prevent a loss of commission or compact state funds;

3. Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule; or

4. Protect public health and safety.

M. The commission or an authorized committee of the commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors. Public notice of any revisions shall be posted on the website of the commission. The revision shall be subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the chair of the commission prior to the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

ARTICLE XII

OVERSIGHT, DISPUTE RESOLUTION AND ENFORCEMENT

A. Oversight of the commission is as follows:

1. The executive, legislative and judicial branches of state government in each compact state shall enforce this compact and take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall have standing as statutory law.

2. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a compact state pertaining to the subject matter of this compact that may affect the powers, responsibilities or actions of the commission.

3. The commission shall be entitled to receive service of process in any such proceeding and shall have standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the commission shall render a judgment or order void as to the commission, this compact or promulgated rules.

B. Default, technical assistance and termination provisions are as follows:

1. If the commission determines that a compact state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall:

(a) Provide written notice to the defaulting state and other compact states of the nature of the default, the proposed means of remedying the default or any other action to be taken by the commission; and

(b) Provide remedial training and specific technical assistance regarding the default.

2. If a state in default fails to remedy the default, the defaulting state may be terminated from the compact on an affirmative vote of a majority of the compact states, and all rights, privileges and benefits conferred by this compact shall be terminated on the effective date of termination. A remedy of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

3. Termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be submitted by the commission to the Governor, the majority and minority leaders of the defaulting state's legislature and each of the compact states.

4. A compact state that has been terminated is responsible for all assessments, obligations and liabilities incurred through the effective date of termination, including obligations which extend beyond the effective date of termination.

5. The commission shall not bear any costs incurred by the state that is found to be in default or that has been terminated from the compact, unless agreed on in writing between the commission and the defaulting state.

6. The defaulting state may appeal the action of the commission by petitioning the United States district court for the state of Georgia or the federal district where the compact has its principal offices. The prevailing member shall be awarded all costs of such litigation, including reasonable attorney fees.

C. Dispute resolution provisions are as follows:

1. On request by a compact state, the commission shall attempt to resolve disputes related to the compact which arise among compact states and between compact and non-compact states.

2. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes that arise before the commission.

D. Enforcement provisions are as follows:

1. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

2. By majority vote, the commission may initiate legal action in the United States district court for the state of Georgia or the federal district where the compact has its principal offices against a compact state in default to enforce compliance with the provisions of the compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing member shall be awarded all costs of such litigation, including reasonable attorney fees.

3. The remedies in this subsection are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

ARTICLE XIII

DATE OF IMPLEMENTATION OF THE PSYCHOLOGY

INTERJURISDICTIONAL COMPACT COMMISSION and

ASSOCIATED RULES, WITHDRAWAL AND AMENDMENTS

A. The compact shall take effect on the date on which the compact is enacted into law in the seventh compact state. The provisions that become effective at that time shall be limited to the powers granted to the commission relating to assembly and the promulgation of rules. Thereafter, the commission shall meet and exercise rulemaking powers necessary to the implementation and administration of this compact.

B. Any state that joins the compact subsequent to the commission's initial adoption of the rules shall be subject to the rules as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission shall have the full force and effect of law on the day the compact becomes law in that state.

C. Any compact state may withdraw from this compact by enacting a statute repealing the same, subject to the following:

1. A compact state's withdrawal shall not take effect until six months after enactment of the repealing statute.

2. Withdrawal shall not affect the continuing requirement of the withdrawing state's psychology regulatory authority to comply with the investigative and adverse action reporting requirements of this compact before the effective date of withdrawal.

D. Nothing in this compact shall be construed to invalidate or prevent any psychology licensure agreement or other cooperative arrangement between a compact state and a non-compact state that does not conflict with the provisions of this compact.

E. This compact may be amended by the compact states. No amendment to this compact shall become effective and binding on any compact state until it is enacted into the law of all compact states.

ARTICLE XIV

CONSTRUCTION AND SEVERABILITY

This compact shall be liberally construed so as to effectuate the purposes thereof. If this compact is held contrary to the constitution of any state member thereto, the compact remains in full force and effect as to the remaining compact states.

§ 32-2087.01 Participation in compact as condition of employment; prohibition

An employer may not require a psychologist to seek licensure through the psychology interjurisdictional compact enacted by section 32-2087 as a condition of initial or continued employment as a psychologist in this state. An employer may require that a psychologist obtain and maintain a license to practice psychology in multiple states, if the psychologist is free to obtain and maintain the licenses by any means authorized by the laws of the respective states.

§ 32-2087.02 Open meeting requirements

If a meeting, or a portion of a meeting, of the psychology interjurisdictional compact commission is closed pursuant to section 32-2087, article X, subsection B, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision consistent with title 38, chapter 3, article 3.1.

§ 32-2087.03 State board of psychologist examiners; notice of commission actions

The state board of psychologist examiners, within thirty days after a psychology interjurisdictional compact commission action, shall post on the board's public website notice of any commission action that may affect a psychologist's license.

Article 4 Behavior Analysts

§ 32-2091 Definitions

In this article, unless the context otherwise requires:

1. "Active license" means a current license issued by the board to a person licensed pursuant to this article.

2. "Adequate records" means records that contain, at a minimum, sufficient information to identify the client, the dates of service, the fee for service, the payments for service and the type of service given and copies of any reports that may have been made.

3. "Behavior analysis" means the design, implementation and evaluation of systematic environmental modifications by a behavior analyst to produce socially significant improvements in human behavior based on the principles of behavior identified through the experimental analysis of behavior. Behavior analysis does not include cognitive therapies or psychological testing, neuropsychology, psychotherapy, sex therapy, psychoanalysis, hypnotherapy and long-term counseling as treatment modalities.

4. "Behavior analysis services" means the use of behavior analysis to assist a person to learn new behavior, increase existing behavior, reduce existing behavior and emit behavior under precise environmental conditions. Behavior analysis includes behavioral programming and behavioral programs.

5. "Behavior analyst" means a person who is licensed pursuant to this article to practice behavior analysis.

6. "Client" means:

(a) A person or entity that receives behavior analysis services.

(b) A corporate entity, a governmental entity or any other organization that has a professional contract to provide services or benefits primarily to an organization rather than to an individual.

(c) An individual's legal guardian for decision making purposes, except that the individual is the client for issues that directly affect the individual's physical or emotional safety and issues that the legal guardian agrees to specifically reserve to the individual.

7. "Exploit" means an action by a behavior analyst who takes undue advantage of the professional association with a client, student or supervisee for the advantage or profit of the behavior analyst.

8. "Health care institution" means a facility that is licensed pursuant to title 36, chapter 4, article 1.

9. "Incompetent as a behavior analyst" means that a person who is licensed pursuant to article 4 of this chapter lacks the knowledge or skills of a behavior analyst to a degree that is likely to endanger the health of a client.

10. "Letter of concern" means an advisory letter to notify a licensee that while there is insufficient evidence to support disciplinary action the board believes the licensee should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in action against the license.

11. "Supervisee" means a person who acts under the extended authority of a behavior analyst to provide behavioral services and includes a person who is in training to provide these services.

12. "Unprofessional conduct" includes the following activities, whether occurring in this state or elsewhere:

(a) Obtaining a fee by fraud or misrepresentation.

(b) Betraying professional confidences.

(c) Making or using statements of a character tending to deceive or mislead.

(d) Aiding or abetting a person who is not licensed pursuant to this article in representing that person as a behavior analyst.

(e) Gross negligence in the practice of a behavior analyst.

(f) Sexual intimacies or sexual intercourse with a current client or a supervisee or with a former client within two years after the cessation or termination of treatment. For the purposes of this subdivision, "sexual intercourse" has the same meaning prescribed in section 13-1401.

(g) Engaging or offering to engage as a behavior analyst in activities that are not congruent with the behavior analyst's professional education, training and experience.

(h) Failing or refusing to maintain and retain adequate business, financial or professional records pertaining to the behavior analysis services provided to a client.

(i) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

(j) Making a fraudulent or untrue statement to the board or its investigators, staff or consultants.

(k) Violating any federal or state law that relates to the practice of behavior analysis or to obtain a license to practice behavior analysis.

(l) Practicing behavior analysis while impaired or incapacitated to the extent and in a manner that jeopardizes the welfare of a client or renders the services provided ineffective.

(m) Using fraud, misrepresentation or deception to obtain or attempt to obtain a behavior analysis license or to pass or attempt to pass a behavior analysis licensing examination or in assisting another person to do so.

(n) Unprofessional conduct in another jurisdiction that resulted in censure, probation or a civil penalty or in the denial, suspension, restriction or revocation of a certificate or license to practice as a behavior analyst.

(o) Providing services that are unnecessary or unsafe or otherwise engaging in activities as a behavior analyst that are unprofessional by current standards of practice.

(p) Falsely or fraudulently claiming to have performed a professional service, charging for a service or representing a service as the licensee's own if the licensee has not rendered the service or assumed supervisory responsibility for the service.

(q) Representing activities or services as being performed under the licensee's supervision if the behavior analyst has not assumed responsibility for them and has not exercised control, oversight and review.

(r) Failing to obtain a client's informed and written consent to release personal or otherwise confidential information to another party unless the release is otherwise authorized by law.

(s) Failing to make client records in the behavior analyst's possession promptly available to another behavior analyst on receipt of proper authorization to do so from the client, a minor client's parent, the client's legal guardian or the client's authorized representative or failing to comply with title 12, chapter 13, article 7.1.

(t) Failing to take reasonable steps to inform or protect a client's intended victim and inform the proper law enforcement officials if the behavior analyst becomes aware during the course of providing or supervising behavior analysis services that a client intends or plans to inflict serious bodily harm on another person.

(u) Failing to take reasonable steps to protect a client if the behavior analyst becomes aware during the course of providing or supervising behavior analysis services that a client intends or plans to inflict serious bodily harm on self.

(v) Abandoning or neglecting a client in need of immediate care without making suitable arrangements for continuation of the care.

(w) Engaging in direct or indirect personal solicitation of clients through the use of coercion, duress, undue influence, compulsion or intimidation practices.

(x) Engaging in false, deceptive or misleading advertising.

(y) Exploiting a client, student or supervisee.

(z) Failing to report information to the board regarding a possible act of unprofessional conduct committed by another behavior analyst who is licensed pursuant to this article unless this reporting violates the behavior analyst's confidential relationship with a client pursuant to this article. A behavior analyst who reports or provides information to the board in good faith is not subject to an action for civil damages.

(aa) Violating a formal board order, consent agreement, term of probation or stipulated agreement issued under this article.

(bb) Failing to furnish information in a timely manner to the board or its investigators or representatives if requested or subpoenaed by the board as prescribed by this article.

(cc) Failing to make available to a client or to the client's designated representative, on written request, a copy of the client's record, excluding raw test data, psychometric testing materials and other information as provided by law.

(dd) Violating an ethical standard adopted by the board.

(ee) Representing oneself as a psychologist or permitting others to do so if the behavior analyst is not also licensed as a psychologist pursuant to this chapter.

§ 32-2091.01 Fees

A. The board, by a formal vote, shall establish fees for the following relating to the licensure of behavior analysts:

1. An application for an active license.

2. An application for a temporary license.

3. Renewal of an active license.

4. Issuance of an initial license.

B. The board may charge additional fees for services it deems necessary and appropriate to carry out this article. These fees shall not exceed the actual cost of providing the service.

C. The board shall not refund fees except as otherwise provided in this article. On special request and for good cause, the board may return the license renewal fee.

§ 32-2091.02 Qualifications of applicant

A person who wishes to practice as a behavior analyst must be licensed pursuant to this article. An applicant for licensure must meet all of the following requirements:

1. Submit an application as prescribed by the board.

2. Be at least twenty-one years of age.

3. Pay all applicable fees prescribed by the board.

4. Have the physical and mental capability to safely and competently engage in the practice of behavior analysis.

5. Not have committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee pursuant to this article.

6. Not have had a professional license or certificate refused, revoked, suspended or restricted in any regulatory jurisdiction in the United States or in another country for reasons that relate to unprofessional conduct. If the board finds that the applicant committed an act or engaged in conduct that would constitute grounds for disciplinary action in this state, the board shall determine to its satisfaction that the conduct has been corrected, monitored and resolved. If the matter has not been resolved, the board shall determine to its satisfaction that mitigating circumstances exist that prevent its resolution.

7. Not have voluntarily surrendered a license or certificate in another regulatory jurisdiction in the United States or in another country while under investigation for reasons that relate to unprofessional conduct. If another jurisdiction has taken disciplinary action against an applicant, the board shall determine to its satisfaction that the cause for the action was corrected and the matter resolved. If the matter has not been resolved by that jurisdiction, the board shall determine to its satisfaction that mitigating circumstances exist that prevent its resolution.

8. Not have a complaint, allegation or investigation pending before another regulatory jurisdiction in the United States or another country that relates to unprofessional conduct. If an applicant has any such complaints, allegations or investigations pending, the board shall suspend the application process and may not issue or deny a license to the applicant until the complaint, allegation or investigation is resolved.

9. Beginning January 1, 2022, have applied for a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1.

§ 32-2091.03 Educational and training standards for licensure

A. An applicant for licensure as a behavior analyst must meet standards adopted by the state board of psychologist examiners, including meeting graduate-level education and supervised experience requirements and passing a national examination. The state board of psychologist examiners shall adopt standards consistent with the standards set by a nationally recognized behavior analyst certification board, except that:

1. The number of hours required for supervised experience must be at least one thousand five hundred hours of supervised work experience.

2. If the experience was obtained in a state that licensed behavior analysts at the time of the supervised work experience, the supervisor must be licensed in the state where the behavior analysis trainee services were provided.

B. The standards adopted for supervised experience must also be consistent with the standards set by a nationally recognized behavior analyst certification board. If the state board of psychologist examiners does not agree with a standard set by a nationally recognized behavior analyst certification board, the state board may adopt an alternate standard.

§ 32-2091.04 Reciprocity

The board may issue a license to a person as a behavior analyst if the person is licensed or certified by a regulatory agency of another state that imposes requirements that are substantially equivalent to those imposed by this article at an equivalent or higher practice level as determined by the board, pays the fee prescribed by the board and meets all of the following requirements:

1. Submits a written application prescribed by the board.

2. Documents to the board's satisfaction proof of initial licensure or certification at an equivalent designation for which the applicant is seeking licensure in this state and proof that the license or certificate is current and in good standing.

3. Documents to the board's satisfaction proof that any other license or certificate issued to the applicant by another state has not been suspended or revoked. If a licensee or certificate holder has been subjected to any other disciplinary action, the board may assess the magnitude of that action and make a decision regarding reciprocity based on this assessment.

4. Meets any other requirements prescribed by the board by rule.

§ 32-2091.06 Temporary licenses; inactive status; reinstatement to active status

A. If the board requires an additional examination, it may issue a temporary license to a behavior analyst who is licensed or certified under the laws of another jurisdiction if the behavior analyst applies to the board for licensure and meets the educational, experience and first examination requirements of this article.

B. A temporary license issued pursuant to this section is effective from the date the application is approved until the last day of the month in which the applicant receives the results of the additional examination.

C. The board shall not extend, renew or reissue a temporary license or allow it to continue in effect beyond the period authorized by this section.

D. The board's denial of an application for licensure terminates a temporary license.

E. The board may place on inactive status and waive the license renewal fee requirements for a person who is temporarily or permanently unable to practice as a behavior analyst due to physical or mental incapacity or disability. An initial request for the waiver of renewal fees shall be accompanied by the renewal fee for an active license, which the board shall return if the waiver is granted. The board shall judge each request for the waiver of renewal fees on its own merits and may seek the verification it deems necessary to substantiate the facts of the situation. A behavior analyst who is retired is exempt from paying the renewal fee. A behavior analyst may request voluntary inactive status by submitting to the board an application on a form prescribed by the board and an affirmation that the behavior analyst will not practice as a behavior analyst in this state for the duration of the voluntary inactive status and by paying the required fee as prescribed by the board by rule.

F. A behavior analyst who is on any form of inactive status shall renew the inactive status every two years by submitting a renewal form provided by the board and paying any applicable fee as prescribed by the board by rule. A notice to renew is fully effective by mailing the renewal application to the licensee's last known address of record in the board's file. Notice is complete at the time of its deposit in the mail. A behavior analyst who is on inactive status due to physical or mental incapacity or disability or retirement shall use the term "inactive" to describe the person's status and shall not practice as a behavior analyst.

G. A behavior analyst on inactive status may request reinstatement of the license to active status by applying to the board. The board shall determine whether the person has been or is in violation of any provisions of this article and whether the person has maintained and updated the person's professional knowledge and capability to practice as a behavior analyst. The board may require the person to take or retake the licensure examinations and may require other knowledge or skill training experiences. If approved for active status, the person shall pay a renewal fee that equals the renewal fee for the license to be reinstated.

H. Beginning January 1, 2022, an applicant for a temporary license pursuant to this section shall have applied for a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1.

§ 32-2091.07 Active license; issuance; renewal; expiration; continuing education

A. If the applicant satisfies all of the requirements for licensure pursuant to this article, the board shall issue an active license and shall prorate the fee for issuing that license for the period remaining until the last day of the birth month of the applicant of the next odd-numbered year or even-numbered year pursuant to subsection B, paragraph 1 or 2 of this section.

B. A person holding an active or inactive license shall apply to renew the license on or before the last day of the birth month of the licensee every other year as follows:

1. In each odd-numbered year, if the licensee holds an odd-numbered license.

2. In each even-numbered year, if the licensee holds an even-numbered license.

C. The application shall include any applicable renewal fee as prescribed by the board by rule. Except as provided in section 32-4301 or 41-1092.11, a license expires if the licensee fails to renew the license on or before the last day of the licensee's birth month of the licensee's renewal year pursuant to subsection B of this section. A licensee may reinstate an expired license by paying a reinstatement fee as prescribed by the board by rule within two months after the last day of the licensee's birth month of that year. Beginning two months after the last day of the licensee's birth month during the licensee's renewal year until the last day of the licensee's birth month the following year, a licensee may reinstate the license by paying a reinstatement fee as prescribed by the board by rule and providing proof of competency and qualifications to the board. This proof may include continuing education, an oral examination, a written examination or an interview with the board. A licensee whose license is not reinstated within a year after the last day of the licensee's birth month of the licensee's renewal year may reapply for licensure as prescribed by this article. A notice to renew is fully effective by mailing or electronically providing the notice to the licensee's last known address of record or last known email address of record in the board's file. Notice is complete at the time of deposit in the mail or when the email is sent.

D. A person renewing a license shall attach to the completed renewal form a report of disciplinary actions or restrictions placed against the license by another state licensing or disciplinary board or disciplinary actions or sanctions imposed by a state or national behavior analysis ethics committee or health care institution. The report shall include the name and address of the sanctioning agency or health care institution, the nature of the action taken and a general statement of the charges leading to the action.

E. A person who renews an active license to practice behavior analysis in this state shall satisfy a continuing education requirement designed to provide the necessary understanding of current developments, skills, procedures or treatment related to the practice of behavior analysis in the amount and during the period the board prescribes. The board shall prescribe documentation requirements.

F. A person who applies for an initial renewal of a license pursuant to this section on or after January 1, 2022 shall possess or have applied for a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1.

§ 32-2091.08 Exemptions from licensure

A. This article does not limit the activities, services and use of a title by the following:

1. A behavior analyst who is employed in a common school, high school or charter school setting and who is certified to use that title by the department of education if the services or activities are a part of the duties of that person's common school, high school or charter school employment.

2. An employee of a government agency in a subdoctorate position who uses the word "assistant" or "associate" after the title and who is supervised by a doctorate position employee who is licensed as a behavior analyst, including a temporary licensee.

3. A matriculated graduate student, or a trainee whose activities are part of a defined behavior analysis program of study, practicum, intensive practicum or supervised independent fieldwork. The practice under this paragraph requires direct supervision consistent with the standards set by a nationally recognized behavior analyst certification board, as determined by the state board of psychologist examiners. A student or trainee may not claim to be a behavior analyst and must use a title that clearly indicates the person's training status, such as "behavior analysis student" or "behavior analysis trainee".

4. A person who resides outside of this state and who is currently licensed or certified as a behavior analyst in that state if the activities and services conducted in this state are within the behavior analyst's customary area of practice, do not exceed twenty days per year and are not otherwise in violation of this article and the client, public or consumer is informed of the limited nature of these activities and services and that the behavior analyst is not licensed in this state.

5. A person in the employ of Arizona state university, northern Arizona university, the university of Arizona or another regionally accredited university in this state if the services are a part of the faculty duties of that person's salaried position and the person is participating in a graduate program.

6. A noncredentialed individual who delivers applied behavior analysis services under the extended authority and direction of a licensed behavior analyst. The individual may not claim to be a professional behavior analyst and must use a title indicating the person's nonprofessional status, such as "ABA technician", "behavior technician" or "tutor".

B. This article does not prevent a member of other recognized professions who is licensed, certified or regulated under the laws of this state from rendering services within that person's scope of practice and code of ethics if that person does not claim to be a behavior analyst.

§ 32-2091.09 Grounds for disciplinary action; duty to report; immunity; proceedings; board action; notice requirements; civil penalty

A. The board on its own motion may investigate evidence that appears to show that a behavior analyst is incompetent as a behavior analyst, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of behavior analysis. A health care institution shall, and any other person may, report to the board information that appears to show that a behavior analyst is incompetent as a behavior analyst, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of behavior analysis. The board shall notify the licensee about whom information has been received as to the content of the information within one hundred twenty days after receiving the information. A person who reports or provides information to the board in good faith is not subject to an action for civil damages. The board, if requested, shall not disclose the name of the person providing information unless this information is essential to proceedings conducted pursuant to this section. The board shall report a health care institution that fails to report as required by this section to the institution's licensing agency.

B. A health care institution shall inform the board if the privileges of a licensee to practice in that institution are denied, revoked, suspended or limited because of actions by the licensee that appear to show that the person is incompetent as a behavior analyst, guilty of unprofessional conduct or mentally or physically unable to safely engage in the practice of behavior analysis, along with a general statement of the reasons that led the health care institution to take this action. A health care institution shall inform the board if a licensee under investigation resigns the licensee's privileges or if a licensee resigns in lieu of disciplinary action by the health care institution. Notification must include a general statement of the reasons for the resignation.

C. The board may require the licensee to undergo any combination of mental, physical or psychological competence examinations at the licensee's expense and shall conduct investigations necessary to determine the competence and conduct of the licensee.

D. Except as provided in subsection E of this section, the committee on behavior analysts shall review all complaints against behavior analysts and, based on the information provided pursuant to subsection A or B of this section, shall submit its recommendations to the full board.

E. If the board finds, based on the information it receives under subsection A or B of this section, that the public health, safety or welfare requires emergency action, the board may order a summary suspension of a license pending proceedings for revocation or other action. If the board issues this order, the board shall serve the licensee with a written notice of complaint and formal hearing pursuant to title 41, chapter 6, article 10, setting forth the charges made against the licensee and the licensee's right to a formal hearing before the board or an administrative law judge within sixty days. The board shall notify the committee on behavior analysts of any action taken pursuant to this subsection.

F. If the board finds that the information provided pursuant to subsection A or B of this section is not of sufficient seriousness to merit direct action against the licensee, the board may take any of the following actions:

1. Dismiss if the board believes the information is without merit.

2. File a letter of concern.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

G. If the board believes the information provided pursuant to subsection A or B of this section is or may be true, the board may request an informal interview with the licensee. If the licensee refuses to be interviewed or if pursuant to an interview the board determines that cause may exist to revoke or suspend the license, the board shall issue a formal complaint and hold a hearing pursuant to title 41, chapter 6, article 10. If as a result of an informal interview or a hearing the board determines that the facts do not warrant revocation or suspension of the license, the board may take any of the following actions:

1. Dismiss if the board believes the information is without merit.

2. File a letter of concern.

3. Issue a decree of censure.

4. Fix a period and terms of probation best adapted to protect the public health and safety and to rehabilitate or educate the licensee. Probation may include temporary suspension for not more than twelve months, restriction of the license or restitution of fees to a client resulting from violations of this article. If a licensee fails to comply with a term of probation, the board may file a complaint and notice of hearing pursuant to title 41, chapter 6, article 10 and take further disciplinary action.

5. Enter into an agreement with the licensee to restrict or limit the licensee's practice or activities in order to rehabilitate the licensee, protect the public and ensure the licensee's ability to safely engage in the practice of behavior analysis.

6. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

H. If the board finds that the information provided pursuant to subsection A or B of this section warrants suspension or revocation of a license, the board shall hold a hearing pursuant to title 41, chapter 6, article 10. Notice of a complaint and hearing is fully effective by mailing a true copy to the licensee's last known address of record in the board's files. Notice is complete at the time of its deposit in the mail.

I. The board may impose a civil penalty of at least $300 but not more than $3,000 for each violation of this article or a rule adopted under this article. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies it collects from civil penalties pursuant to this subsection in the state general fund.

J. If the board determines after a hearing that a licensee has committed an act of unprofessional conduct, is mentally or physically unable to safely engage in the practice of behavior analysis or is incompetent as a behavior analyst, the board may do any of the following in any combination and for any period of time it determines necessary:

1. Suspend or revoke the license.

2. Censure the licensee.

3. Place the licensee on probation.

K. A licensee may submit a written response to the board within thirty days after receiving a letter of concern. The response is a public document and shall be placed in the licensee's file.

L. A letter of concern is a public document and may be used in future disciplinary actions against a licensee. A decree of censure is an official action against the behavior analyst's license and may include a requirement that the licensee return fees to a client.

M. Except as provided in section 41-1092.08, subsection H, a person may appeal a final decision made pursuant to this section to the superior court pursuant to title 12, chapter 7, article 6.

N. If during the course of an investigation the board determines that a criminal violation may have occurred involving the delivery of behavior analysis services, it shall inform the appropriate criminal justice agency.

§ 32-2091.10 Right to examine and copy evidence; subpoenas; right to counsel; confidentiality

A. In connection with an investigation conducted pursuant to this article, at all reasonable times the board and its authorized agents may examine and copy documents, reports, records and other physical evidence wherever located relating to the licensee's professional competence, unprofessional conduct or mental or physical ability to safely practice behavior analysis.

B. The board and its authorized agents may issue subpoenas to compel the attendance and testimony of witnesses and the production of documents and other physical evidence as prescribed in subsection A. The board may petition the superior court to enforce a subpoena.

C. Within five days of receiving a subpoena, a person may petition the board to revoke, limit or modify the subpoena. The board shall take this action if it determines that the evidence demanded is not relevant to the investigation. The person may petition the superior court for this relief without first petitioning the board.

D. A person appearing before the board or its authorized agents may be represented by an attorney.

E. Documents associated with an investigation are not open to the public and shall remain confidential. Documents may not be released without a court order compelling their production.

F. This section or any other provision of law making communications between a behavior analyst and client privileged does not apply to an investigation conducted pursuant to this article. The board, its employees and its agents shall keep in confidence the names of clients whose records are reviewed during an investigation.

§ 32-2091.11 Injunction

A. The board may petition the superior court for an order to enjoin the following:

1. A person who is not licensed pursuant to this article from practicing behavior analysis.

2. The activities of a licensee that are an immediate threat to the public.

3. Criminal activities.

B. If the board seeks an injunction to stop the unlicensed practice of behavior analysis, it is sufficient to charge that the respondent on a certain day in a specific county engaged in the practice of behavior analysis without a license and without being exempt from the licensure requirements of this article. It is not necessary to show specific damages or injury.

C. The issuance of an injunction does not limit the board's authority to take other action against a licensee pursuant to this article.

§ 32-2091.12 Violations; classification

A. It is a class 2 misdemeanor for a person who is not licensed pursuant to this article to engage in the practice of behavior analysis.

B. It is a class 2 misdemeanor for any person to:

1. Secure a license to practice pursuant to this article by fraud or deceit.

2. Impersonate a member of the board in order to issue a license to practice pursuant to this article.

C. It is a class 2 misdemeanor for a person who is not licensed pursuant to this article to use any combination of words, initials and symbols that leads the public to believe the person is licensed to practice behavior analysis in this state.

§ 32-2091.13 Confidential communications

A. The confidential relations and communications between a client and a person who is licensed pursuant to this article, including temporary licensees, are placed on the same basis as those provided by law between an attorney and client. Unless the client waives the behavior analyst-client privilege in writing or in court testimony, a behavior analyst shall not voluntarily or involuntarily divulge information that is received by reason of the confidential nature of the behavior analyst's practice. The behavior analyst shall divulge to the board information it requires in connection with any investigation, public hearing or other proceeding. The behavior analyst-client privilege does not extend to cases in which the behavior analyst has a duty to report information as required by law.

B. The behavior analyst shall ensure that client records and communications are treated by clerical and paraprofessional staff at the same level of confidentiality and privilege required of the behavior analyst.

§ 32-2091.14 Status as behavioral health professional

Notwithstanding any law to the contrary, the Arizona health care cost containment system administration shall recognize a behavior analyst who is licensed pursuant to this article as a behavioral health professional who is eligible for reimbursement of services.

§ 32-2091.15 Committee on behavior analysts; membership; duties; board responsibilities

A. The committee on behavior analysts is established within the state board of psychologist examiners consisting of five members who are appointed by the governor and who serve at the pleasure of the governor. Each member shall serve for a term of five years beginning and ending on the third Monday in January. A committee member may not serve more than two full consecutive terms.

B. All members of the committee shall be licensed behavior analysts in professional practice, two of whom shall be members of the board. The committee shall annually elect a chairperson from among its membership.

C. Within one year after their initial appointment to the committee, members shall receive at least five hours of training prescribed by the board that includes instruction in ethics and open meeting requirements.

D. Committee members shall receive reimbursement of all expenses pursuant to title 38, chapter 4, article 2.

E. The committee shall make recommendations to the board on all matters relating to the licensing and regulation of behavior analysts. The committee may recommend regulatory changes to the board that are not specific to an individual licensee, but the committee shall obtain public input from behavior analyst licensees or their designated representatives before making any final recommendation to the board.

Chapter 20 Real Estate

Article 1 Real Estate Department

§ 32-2101 Definitions

In this chapter, unless the context otherwise requires:

1. "Acting in concert" means evidence of collaborating to pursue a concerted plan.

2. "Address of record" means any of the following:

(a) The address where a licensee practices or is otherwise employed.

(b) A licensee's residential address.

(c) The address of a licensee's statutory agency who is registered as the licensee's statutory agent with the corporation commission. This subdivision applies only if notice of the statutory agent is given to the department pursuant to section 32-2126.

3. "Advertising" means attempting by publication, dissemination, exhibition, solicitation or circulation, oral or written, or for broadcast on radio or television to induce directly or indirectly any person to enter into any obligation or acquire any title or interest in lands subject to this chapter, including the land sales contract to be used and any photographs, drawings or artist's presentations of physical conditions or facilities existing or to exist on the property. Advertising does not include:

(a) Press releases or other communications delivered to newspapers, periodicals or other news media for general information or public relations purposes if no charge is made by the newspapers, periodicals or other news media to publish or use any part of these communications.

(b) Communications to stockholders as follows:

(i) Annual reports and interim financial reports.

(ii) Proxy materials.

(iii) Registration statements.

(iv) Securities prospectuses.

(v) Applications for listing of securities on stock exchanges.

(vi) Prospectuses.

(vii) Property reports.

(viii) Offering statements.

4. "Affiliate" means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the person specified.

5. "Associate broker" means a licensed broker who is employed by another broker. Unless otherwise specifically provided, an associate broker has the same license privileges as a salesperson.

6. "Barrier" means a natural or man-made geographic feature that prevents parcels of land from being practicably, reasonably and economically united or reunited and that was not caused or created by the owner of the parcels.

7. "Blanket encumbrance":

(a) Means either:

(i) Any mortgage, any deed of trust or any other encumbrance or lien that secures or evidences the payment of monies and that affects more than one lot or parcel of subdivided land.

(ii) An agreement that affects more than one lot or parcel by which the subdivider holds the subdivision under an option, contract to sell or trust agreement.

(b) Does not include taxes and assessments that are levied by public authority.

8. "Board" means the real estate advisory board.

9. "Broker", when used without modification, means a person who is licensed as a broker under this chapter or who is required to be licensed as a broker under this chapter.

10. "Business broker" means a real estate broker who acts as an intermediary or agent between sellers or buyers, or both, in the sale or purchase, or both, of businesses or business opportunities where a lease or sale of real property is either a direct or incidental part of the transaction.

11. "Camping site" means a space that is designed and promoted for the purpose of locating any trailer, tent, tent trailer, pickup camper or other similar device used for camping.

12. "Cemetery" or "cemetery property" means any one, or a combination of more than one, of the following in a place that is used, or intended to be used, and dedicated for cemetery purposes:

(a) A burial park, for earth interments.

(b) A mausoleum, for crypt or vault entombments.

(c) A crematory, or a crematory and columbarium, for cinerary interments.

(d) A cemetery plot, including interment rights, mausoleum crypts, niches and burial spaces.

13. "Cemetery broker" means a person other than a real estate broker or real estate salesperson who, for another, for compensation:

(a) Sells, leases or exchanges cemetery property or interment services of or for another, or on the person's own account.

(b) Offers for another or for the person's own account to buy, sell, lease or exchange cemetery property or interment services.

(c) Negotiates the purchase and sale, lease or exchange of cemetery property or interment services.

(d) Negotiates the purchase or sale, lease or exchange, or lists or solicits, or negotiates a loan on or leasing of cemetery property or interment services.

14. "Cemetery salesperson" means a natural person who acts on the person's own behalf or through and on behalf of a professional limited liability company or a professional corporation engaged by or on behalf of a licensed cemetery or real estate broker, or through and on behalf of a corporation, partnership or limited liability company that is licensed as a cemetery or real estate broker, to perform any act or transaction included in the definition of cemetery broker.

15. "Commissioner" means the state real estate commissioner.

16. "Common promotional plan" means a plan, undertaken by a person or a group of persons acting in concert, to offer lots for sale or lease. If the land is offered for sale by a person or group of persons acting in concert, and the land is contiguous or is known, designated or advertised as a common unit or by a common name, the land is presumed, without regard to the number of lots covered by each individual offering, as being offered for sale or lease as part of a common promotional plan. Separate subdividers selling lots or parcels in separately platted subdivisions within a master planned community shall not be deemed to be offering their combined lots for sale or lease as part of a common promotional plan.

17. "Compensation" means any fee, commission, salary, monies or other valuable consideration for services rendered or to be rendered as well as the promise of consideration whether contingent or not.

18. "Contiguous":

(a) Means lots, parcels or fractional interests that share a common boundary or point.

(b) Does not include lots, parcels or fractional interests that are separated by either of the following:

(i) A barrier.

(ii) A road, street or highway that has been established by this state or by any agency or political subdivision of this state, that has been designated by the federal government as an interstate highway or that has been regularly maintained by this state or by any agency or political subdivision of this state and has been used continuously by the public for at least the last five years.

19. "Control" or "controlled" means a person who, through ownership, voting rights, power of attorney, proxy, management rights, operational rights or other rights, has the right to make decisions binding on an entity, whether a corporation, a partnership or any other entity.

20. "Corporation licensee" means a lawfully organized corporation that is registered with the corporation commission and that has an officer licensed as the designated broker pursuant to section 32-2125.

21. "Department" means the state real estate department.

22. "Designated broker" means a natural person who is licensed as a broker under this chapter and who is either:

(a) Designated to act on behalf of an employing real estate, cemetery or membership camping entity.

(b) Doing business as a sole proprietor.

23. "Developer":

(a) Means a person who offers real property in a development for sale, lease or use, either immediately or in the future, on the person's own behalf or on behalf of another person, under this chapter.

(b) Does not include a person whose involvement with a development is limited to listing property within the development for sale, lease or use.

24. "Development" means any division, proposed division or use of real property that the department has authority to regulate, including subdivided and unsubdivided lands, cemeteries, condominiums, timeshares, membership campgrounds and stock cooperatives.

25. "Distance learning" means continuing education or prelicensure education that is an online, planned learning experience with a geographic separation that may be synchronous or asynchronous, that does not require real-time interaction between a student and an instructor and that uses a platform with self-paced or prerecorded lessons and materials that a student can access via the internet to proceed at the student's own pace.

26. "Employing broker" means a person who is licensed or is required to be licensed as a:

(a) Broker entity pursuant to section 32-2125, subsection A.

(b) Sole proprietorship if the sole proprietor is a broker licensed pursuant to this chapter.

27. "Fractional interest" means an undivided interest in improved or unimproved land, lots or parcels of any size created for the purpose of sale or lease and evidenced by any receipt, certificate, deed or other document conveying the interest. Undivided interests in land, lots or parcels created in the names of a husband and wife as community property, joint tenants or tenants in common, or in the names of other persons who, acting together as part of a single transaction, acquire the interests without a purpose to divide the interests for present or future sale or lease shall be deemed to constitute only one fractional interest.

28. "Improved lot or parcel" means a lot or parcel of a subdivision on which there is a residential, commercial or industrial building or concerning which a contract has been entered into between a subdivider and a purchaser that obligates the subdivider directly, or indirectly through a building contractor, to completely construct a residential, commercial or industrial building on the lot or parcel within two years after the date on which the contract of sale for the lot is entered into, or for a condominium as defined in section 33-1202, within four years after the date on which the contract for sale is entered into.

29. "Inactive license" means a license that is issued pursuant to article 2 of this chapter to a licensee who is on inactive status during the current license period and who is not engaged by or on behalf of a broker.

30. "Lease" or "leasing" includes any lease, whether it is the sole, the principal or any incidental part of a transaction.

31. "License" means the whole or part of any agency permit, certificate, approval, registration, public report, charter or similar form of permission required by this chapter.

32. "Licensee" means a person to whom a license for the current license period has been granted under any provision of this chapter, and, for the purposes of section 32-2153, subsection A, includes original license applicants.

33. "License period" means the two-year period beginning with the date of original issue or renewal of a particular license and ending on the expiration date, if any.

34. "Limited liability company licensee" means a lawfully organized limited liability company that has a member or manager who is a natural person and who is licensed as the designated broker pursuant to section 32-2125.

35. "Live classroom course" means a course or instructional segment delivered in either an in-person classroom instructional format or a synchronous remote instructional format that allows students to observe and participate remotely in an instructional segment via livestreaming.

36. "Lot reservation" means an expression of interest by a prospective purchaser in buying at some time in the future a subdivided or unsubdivided lot, unit or parcel in this state. In all cases, a subsequent affirmative action by the prospective purchaser must be taken to create a contractual obligation to purchase.

37. "Master planned community" means a development that consists of two or more separately platted subdivisions and that is either subject to a master declaration of covenants, conditions or restrictions, is subject to restrictive covenants sufficiently uniform in character to clearly indicate a general scheme for improving or developing real property or is governed or administered by a master owner's association.

38. "Member" means a member of the real estate advisory board.

39. "Membership camping broker" means a person, other than a salesperson, who, for compensation:

(a) Sells, purchases, lists, exchanges or leases membership camping contracts.

(b) Offers to sell, purchase, exchange or lease membership camping contracts.

(c) Negotiates or offers, attempts or agrees to negotiate the sale, purchase, exchange or lease of membership camping contracts.

(d) Advertises or holds himself out as being engaged in the business of selling, buying, exchanging or leasing membership camping contracts or counseling or advising regarding membership camping contracts.

(e) Assists or directs in procuring prospects calculated or intended to result in the sale, purchase, listing, exchange or lease of membership camping contracts.

(f) Performs any of the foregoing acts as an employee or on behalf of a membership camping operator or membership contract owner.

40. "Membership camping contract" means an agreement that is offered or sold in this state evidencing a purchaser's right or license to use the camping or outdoor recreation facilities of a membership camping operator and includes a membership that provides for this use.

41. "Membership camping operator":

(a) Means an enterprise, other than one that is tax exempt under section 501(c)(3) of the internal revenue code of 1986, as amended, that solicits membership paid for by a fee or periodic payments and has as one of its purposes camping or outdoor recreation, including the use of camping sites primarily by members.

(b) Does not include camping or recreational trailer parks that are open to the general public and that contain camping sites rented for a per use fee or a mobile home park.

42. "Membership camping salesperson" means a natural person who acts on the person's own behalf or through and on behalf of a professional limited liability company or a professional corporation engaged by or on behalf of a licensed membership camping or real estate broker, or by or on behalf of a corporation, partnership or limited liability company that is licensed as a membership camping or real estate broker, to perform any act or participate in any transaction in a manner included in the definition of membership camping broker.

43. "Partnership licensee" means a partnership with a managing general partner who is licensed as the designated broker pursuant to section 32-2125.

44. "Permanent access", as required under article 4 of this chapter, means permanent access from the subdivision to any federal, state or county highway.

45. "Perpetual care" or "endowed care":

(a) Means maintaining and caring, in all places where interments have been made, for the trees, shrubs, roads, streets and other improvements and embellishments contained within or forming a part of the cemetery.

(b) Does not include maintaining or repairing monuments, tombs, copings or other man-made ornaments as associated with individual burial spaces.

46. "Perpetual or endowed-care cemetery" means a cemetery in which lots or other burial spaces are sold or transferred under the representation that the cemetery will receive perpetual care or endowed care free of further cost to the purchaser after payment of the original purchase price for the lot, burial space or interment right.

47. "Person" means any individual, corporation, partnership or company and any other form of multiple organization for carrying on business, foreign or domestic.

48. "Private cemetery" means a cemetery or place that is not licensed under article 6 of this chapter, where burials or interments of human remains are made, in which sales or transfers of interment rights or burial plots are not made to the public and in which not more than ten interments or burials occur annually.

49. "Promotion" or "promotional practice" means advertising and any other act, practice, device or scheme to induce directly or indirectly any person to enter into any obligation or acquire any title or interest in or use of real property subject to this chapter, including meetings with prospective purchasers, arrangements for prospective purchasers to visit real property, travel allowances and discount, exchange, refund and cancellation privileges.

50. "Real estate" includes leasehold-interests and any estates in land as defined in title 33, chapter 2, articles 1 and 2, regardless of whether located in this state.

51. "Real estate broker" means a person, other than a salesperson, who, for another and for compensation:

(a) Sells, exchanges, purchases, rents or leases real estate, businesses and business opportunities or timeshare interests.

(b) Offers to sell, exchange, purchase, rent or lease real estate, businesses and business opportunities or timeshare interests.

(c) Negotiates or offers, attempts or agrees to negotiate the sale, exchange, purchase, rental or leasing of real estate, businesses and business opportunities or timeshare interests.

(d) Lists or offers, attempts or agrees to list real estate, businesses and business opportunities or timeshare interests for sale, lease or exchange.

(e) Auctions or offers, attempts or agrees to auction real estate, businesses and business opportunities or timeshare interests.

(f) Buys, sells, offers to buy or sell or otherwise deals in options on real estate, businesses and business opportunities or timeshare interests or improvements to real estate, businesses and business opportunities or timeshare interests.

(g) Collects or offers, attempts or agrees to collect rent for the use of real estate, businesses and business opportunities or timeshare interests. This subdivision does not apply to a person who is not a licensee, who works for a real estate broker or a real estate salesperson, who collects in-person rent and related fees on behalf of the real estate broker or real estate salesperson for the use of real estate as part of the person's clerical duties and who provides a receipt when rent is paid.

(h) Advertises or holds himself out as being engaged in the business of buying, selling, exchanging, renting or leasing real estate, businesses and business opportunities or timeshare interests or counseling or advising regarding real estate, businesses and business opportunities or timeshare interests.

(i) Assists or directs in procuring prospects that are calculated to result in the sale, exchange, leasing or rental of real estate, businesses and business opportunities or timeshare interests.

(j) Assists or directs in negotiating any transaction calculated or intended to result in the sale, exchange, leasing or rental of real estate, businesses and business opportunities or timeshare interests.

(k) Incident to the sale of real estate, businesses and business opportunities negotiates or offers, attempts or agrees to negotiate a loan secured or to be secured by any mortgage or other encumbrance on or transfer of real estate, businesses and business opportunities or timeshare interests subject to section 32-2155, subsection D. This subdivision does not apply to mortgage brokers as defined in and subject to title 6, chapter 9, article 1.

(l) Engages in the business of assisting or offering to assist another in filing an application for the purchase or lease of, or in locating or entering on, lands owned by the state or federal government.

(m) Claims, demands, charges, receives, collects or contracts to collect an advance fee in connection with any employment enumerated in this section, including employment undertaken to promote the sale or lease of real property by advance fee listing, by furnishing rental information to a prospective tenant for a fee paid by the prospective tenant, by advertising or by any other offering to sell, lease, exchange or rent real property or selling kits connected therewith. This does not include the activities of any communications media of general circulation or coverage not primarily engaged in advertising real estate or any communications media activities that are specifically exempt from applicability of this article under section 32-2121.

(n) Engages in any of the acts listed in subdivisions (a) through (m) of this paragraph for the sale or lease of other than real property if a real property sale or lease is a part of, contingent on or ancillary to the transaction.

(o) Performs any of the acts listed in subdivisions (a) through (m) of this paragraph as an employee of, or in behalf of, the owner of real estate, or interest in the real estate, or improvements affixed on the real estate, for compensation.

(p) Acts as a business broker.

52. "Real estate sales contract" means an agreement in which one party agrees to convey title to real estate to another party on the satisfaction of specified conditions set forth in the contract.

53. "Real estate salesperson" means a natural person who acts on the person's own behalf or through and on behalf of a professional limited liability company or a professional corporation engaged by or on behalf of a licensed real estate broker, or by or on behalf of a limited liability company, partnership or corporation that is licensed as a real estate broker, to perform any act or participate in any transaction in a manner included in the definition of real estate broker subject to section 32-2155.

54. "Sale" or "lease" includes every disposition, transfer, option or offer or attempt to dispose of or transfer real property, or an interest, use or estate in the real property, including offering the property as a prize or gift if a monetary charge or consideration for whatever purpose is required.

55. "Salesperson", when used without modification, means a natural person who acts on the person's own behalf or through and on behalf of a professional limited liability company or a professional corporation licensed under this chapter or any person required to be licensed as a salesperson under this chapter.

56. "School" means a person or entity that offers a course of study toward completion of the education requirements leading to licensure or renewal of licensure under this chapter.

57. "Stock cooperative" means a corporation to which all of the following apply:

(a) The corporation is formed or used to hold title to improved real property in fee simple or for a term of years.

(b) All or substantially all of the shareholders of the corporation each receive a right of exclusive occupancy in a portion of the real property to which the corporation holds title.

(c) The right of occupancy may only be transferred with the concurrent transfer of the shares of stock in the corporation held by the person having the right of occupancy.

58. "Subdivider":

(a) Means any person who offers for sale or lease six or more lots, parcels or fractional interests in a subdivision or who causes land to be subdivided into a subdivision for the subdivider or for others, or who undertakes to develop a subdivision.

(b) Does not include a public agency or officer authorized by law to create subdivisions.

59. "Subdivision" or "subdivided lands":

(a) Means improved or unimproved land or lands divided or proposed to be divided for the purpose of sale or lease, whether immediate or future, into six or more lots, parcels or fractional interests.

(b) Includes a stock cooperative, lands divided or proposed to be divided as part of a common promotional plan and residential condominiums as defined in title 33, chapter 9.

(c) Does not include:

(i) Leasehold offerings of one year or less.

(ii) The division or proposed division of land located in this state into lots or parcels each of which is or will be thirty-six acres or more in area including to the centerline of dedicated roads or easements, if any, contiguous to the lot or parcel.

(iii) The leasing of agricultural lands or apartments, offices, stores, hotels, motels, pads or similar space within an apartment building, industrial building, rental recreational vehicle community, rental manufactured home community, rental mobile home park or commercial building.

(iv) The subdivision into or development of parcels, plots or fractional portions within the boundaries of a cemetery that has been formed and approved pursuant to this chapter.

(v) A sale or lease of a lot, parcel or fractional interest that occurs ten or more years after the sale or lease of another lot, parcel or fractional interest if the other lot, parcel or fractional interest is not subject to this article and is treated as an independent parcel unless, on investigation by the commissioner, there is evidence of intent to subdivide.

60. "Timeshare" or "timeshare property" means real property ownership or right of occupancy in real property pursuant to article 9 of this chapter. For the purposes of this chapter, a timeshare is not a security unless it meets the definition of a security under section 44-1801.

61. "Trustee":

(a) Means a person who either:

(i) Is designated under section 32-2194.27 to act as a trustee for an endowment-care cemetery fund.

(ii) Holds bare legal title to real property under a subdivision trust.

(b) Does not include a developer, subdivider, broker or salesperson within this chapter.

62. "Unimproved lot or parcel" means a lot or parcel of a subdivision that is not an improved lot or parcel.

63. "Unsubdivided lands":

(a) Means land or lands divided or proposed to be divided for the purpose of sale or lease, whether immediate or future, into six or more lots, parcels or fractional interests and the lots or parcels are thirty-six acres or more each but less than one hundred sixty acres each, or that are offered, known or advertised under a common promotional plan for sale or lease, except that agricultural leases shall not be included in this definition.

(b) Includes any land that is sold and that would otherwise constitute the sixth lot, parcel or fractional interest if the sale occurs ten or more years after the earliest of the previous five sales and if all of the sales consist of property that was originally contained within the same parcel that is thirty-six acres or more and less than one hundred sixty acres.

§ 32-2102 Administration of chapter by real estate department; purpose

This chapter shall be administered by the state real estate department under the direction of the real estate commissioner. The purpose of the department in administering this chapter is to protect the public interest through licensure and regulation of the real estate profession in this state.

§ 32-2103 Placement of monies collected; revision of fees

A. The department shall deposit, pursuant to sections 35-146 and 35-147, all monies collected under the provisions of this chapter in the state general fund unless otherwise prescribed by law.

B. Each year the commissioner shall revise all fees collected under this chapter within the limits prescribed by this chapter in such a manner that the revenue derived from such fees equals at least ninety-five per cent but not more than one hundred ten per cent of the anticipated appropriated budget for the department for the succeeding fiscal year. If the revenue derived from the fees exceeds one hundred ten per cent of the anticipated appropriated budget for the department for the succeeding fiscal year, the commissioner shall lower the fees in the succeeding year in proportion to the excess.

§ 32-2104 Real estate advisory board; members; terms; qualifications; compensation; chairperson; duties; annual evaluation

A. The real estate advisory board is established composed of ten members who are appointed by the governor. The term of office of each member is six years, and the terms of three members expire on January 31 of each odd-numbered year. Appointment to fill a vacancy occurring other than by expiration of term shall be filled by appointment for the unexpired portion of the term only.

B. The membership of the board shall consist of:

1. Two members, each of whom is a real estate broker or real estate salesperson with at least five years of residential brokerage experience in this state. Not more than one member shall be appointed from any one county.

2. One member who has been engaged in a commercial real estate brokerage for the five years immediately preceding appointment.

3. One member who has been engaged in multifamily residential rental property management with a real estate broker license for the five years immediately preceding appointment.

4. One member who has been engaged in timeshare, campground or cemetery sales for the five years immediately preceding appointment.

5. One member who has been primarily engaged in subdividing real property for the five years immediately preceding appointment.

6. One member who has been an active school administrator or approved instructor for the five years immediately preceding appointment.

7. Three public members who are not related within the third degree of consanguinity or affinity to any person holding a broker's or salesperson's license from this state.

C. Members of the board shall receive no compensation but shall be reimbursed for subsistence expenses pursuant to section 38-624 and travel expenses pursuant to section 38-623.

D. The board annually shall select from its membership a chairperson for the board.

E. The board shall provide the commissioner with such recommendations as it deems necessary and beneficial to the best interests of the public. The board shall also provide recommendations on specific questions or proposals as the board deems necessary or as requested by the commissioner.

F. The board annually shall present to the governor an evaluation of the performance of the real estate commissioner and the real estate department.

G. Not more than five members of the board from any one county may serve concurrently.

§ 32-2105 Meetings of the state real estate advisory board

A. The board shall meet for the transaction of business not less than once each quarter-year at a place within the state it designates. The board may hold other meetings it deems advisable upon five days' written notice of the time and place of the meeting, signed by the commissioner or a majority of the members of the board.

B. A majority of the board shall constitute a quorum. A vacancy on the board shall not impair the rights or powers of the remaining members.

§ 32-2106 Real estate commissioner; appointment; qualifications

A. The real estate commissioner shall be appointed by the governor, pursuant to section 38-211. The real estate commissioner shall serve at the pleasure of the governor.

B. To be a candidate for the position of real estate commissioner a person shall have at least five years' experience in the real estate industry, title insurance industry or banking or mortgage broker industry and three years' administrative experience and shall not at the date of acceptance of appointment be financially interested in any real estate or brokerage firm or act as a broker, salesperson or agent of any real estate or brokerage firm.

§ 32-2107 Powers and duties of commissioner; compensation; administration of department; seal; revolving fund

A. The commissioner shall have charge of the department with power to administer it in accordance with the provisions of and to carry out the purposes of this chapter. The commissioner shall adopt a seal which shall bear the words "real estate commissioner, state of Arizona", which shall be used for the authentication of proceedings of the department and the official documents thereof. The commissioner's principal office shall be at the state capitol. The commissioner may have branch offices the commissioner deems necessary in other cities.

B. The commissioner shall receive compensation as determined pursuant to section 38-611.

C. The commissioner shall prepare and cause to be produced and circulated among the licensees and the general public educational matter the commissioner deems helpful and proper for the guidance and assistance of both licensees and the public. The commissioner may assess a fee for each of these educational products that does not exceed a level reasonably estimated to be sufficient to recover production and distribution costs.

D. In cooperation with industry educators, content experts and other professionals, the commissioner may develop, sponsor or hold educational seminars and workshops for the benefit of licensees.

E. A real estate department education revolving fund is established consisting of monies received from the sale of educational matter under subsection C of this section and grants of monies to be used in the production of educational products. Monies in the fund shall be used for the printing of a compilation of real estate laws and rules and other educational publications and for other educational efforts the commissioner deems helpful and proper for the guidance and assistance of licensees and the public, including sponsoring and holding educational seminars or workshops for educators and other licensees. The department shall establish the revolving fund as a separate account. The department shall make a full accounting of its use to the department of administration annually or as required by the department of administration. Expenditures from the fund and reimbursement to the fund shall be as prescribed by rules of the department of administration. Monies received in the real estate department education revolving fund are not subject to reversion, except that all monies in the fund in excess of twenty-five thousand dollars at the end of the fiscal year revert to the state general fund.

F. The commissioner shall adopt rules, in accord with this chapter, as the commissioner deems necessary to carry out this chapter.

G. The commissioner may approve standardized legal forms for use in the sale or lease of real estate for the purpose of recognizing compliance of the forms with this chapter and the rules adopted pursuant to this chapter.

§ 32-2107.01 Recorded disclaimer of unlawful restrictions

A. The commissioner shall execute and record in the office of the county recorder in each county in this state a document that disclaims the validity and enforceability of certain restrictions and covenants. The document shall contain a disclaimer in substantially the following form:

It is the law of this state that any covenants or restrictions that are based on race, religion, color, disability status or national origin are invalid and unenforceable. If the invalid covenant or restriction is contained in a document that is recorded in this county, it is hereby declared void.

B. The document that is executed and recorded by the commissioner shall include the legal description specified by title 11, chapter 1, article 1 for the appropriate county.

C. This section does not affect any other covenant, condition or restriction.

§ 32-2108 Powers and duties of commissioner to make investigations and require information

A. The commissioner on the commissioner's own motion may, and on a verified complaint in writing shall, investigate the actions of any natural person or entity engaged in the business or acting in the capacity of a broker, salesperson or developer and may at any time examine the books and records used in connection with the business insofar as the commissioner reasonably believes the books or records pertain to the transfer, sale, rental, lease, use or management of real property. In connection with an investigation, the commissioner or the commissioner's representative may take testimony and may examine and copy documents and other physical evidence that relate to the investigation. If necessary, the commissioner or the commissioner's representative may issue subpoenas to compel the testimony of witnesses and the production of documents and other evidence. If a person refuses to comply with a subpoena, the commissioner or the commissioner's representative may apply to the superior court for an order to compel compliance.

B. The commissioner shall establish a certification and enforcement unit that is charged with investigative duties relevant to the rules of the commissioner and the laws of this state, including applications for certification, investigations and enforcement and other duties as the commissioner prescribes.

C. The commissioner may require any reasonably necessary additional information about an applicant for or holder of a license or public report or renewal or amendment of a license or public report. For the purposes of this subsection, "applicant" or "holder" means a person and, if an entity, any officer, director, member, manager, partner, owner, trust beneficiary holding ten percent or more beneficial interest, stockholder owning ten percent or more stock and person exercising control of the entity. The information may include:

1. Prior criminal records.

2. A valid fingerprint clearance card issued pursuant to section 41-1758.03.

3. An affidavit setting out whether the applicant or holder has:

(a) Been convicted of a felony or a misdemeanor.

(b) Had any business or professional license denied, suspended or revoked or had any other disciplinary action taken or administrative order entered against the applicant or holder by any regulatory agency.

(c) Had a public report denied or suspended.

(d) Been permanently or temporarily enjoined by order, judgment or decree from engaging in or continuing any conduct or practice in connection with the sale or purchase of real estate, cemetery property, timeshare intervals, membership camping campgrounds or contracts or securities or involving consumer fraud or the racketeering laws of this state.

(e) Had any adverse decision or judgment entered against the applicant or holder arising out of the conduct of any business in or involving a transaction in real estate, cemetery property, timeshare intervals or membership camping campgrounds or contracts involving fraud, dishonesty or moral turpitude.

(f) Filed, or is subject to, a petition under any chapter of the federal bankruptcy act.

(g) Participated in, operated or held an interest or exercised control in any entity to which subdivision (b), (c), (d), (e) or (f) of this paragraph applies.

§ 32-2108.01 License applicants; fingerprint clearance cards; definition

A. Before receiving and holding a license issued pursuant to this chapter, each license applicant shall obtain a valid fingerprint clearance card issued pursuant to section 41-1758.03.

B. The license applicant is responsible for providing the department with a valid fingerprint clearance card.

C. The department shall not issue a license to an original license applicant before receiving a valid fingerprint clearance card pursuant to this section. The department may suspend a license if the licensee's fingerprint clearance card is suspended and either:

1. If the person was convicted of the alleged crime causing the fingerprint clearance card suspension, the commissioner could use the conviction to deny the license application pursuant to this chapter.

2. The licensee fails to submit sufficient evidence to prove the individual applied for a good cause exception pursuant to section 41-619.55 within five business days after being notified by the department.

D. This section does not affect the department's authority to otherwise issue, deny, cancel, terminate, suspend or revoke a license.

E. For the purposes of this section, "license applicant" means:

1. Each original real estate salesperson, cemetery salesperson and membership camping salesperson and each original real estate broker, cemetery broker and membership camping broker applicant pursuant to article 2 of this chapter.

2. Each natural person, or for an entity applicant, any person exercising control of the entity, who applies for an original certificate of approval to operate a real estate school, or for a renewal certificate, any natural person or person exercising control who has not previously submitted a fingerprint clearance card to the department.

3. Any natural person, or for an entity applicant, any person exercising control of the entity, for whom the department has evidence of a criminal record that has not been previously reviewed or evaluated by the department and who applies for a:

(a) License renewal pursuant to section 32-2130.

(b) Public report to:

(i) Sell or lease subdivided lands pursuant to article 4 of this chapter.

(ii) Sell or lease unsubdivided lands pursuant to article 7 of this chapter.

(iii) Sell or lease timeshare estates pursuant to article 9 of this chapter.

(iv) Sell membership camping contracts pursuant to article 10 of this chapter.

(c) Certificate of authority to sell cemetery lots pursuant to article 6 of this chapter.

§ 32-2109 Employment; compensation

Subject to title 41, chapter 4, article 4, the commissioner shall appoint a secretary and such deputies, assistants, and clerks as are necessary. The compensation of all such employees shall be as determined pursuant to section 38-611.

§ 32-2110 Interest of department officer or employee in real estate company prohibited

No officer or employee of the department shall be connected with or directly or indirectly interested in any real estate company or real estate brokerage firm.

§ 32-2111 Attorney general as legal adviser and representative of commissioner

The attorney general shall act for the commissioner in all legal actions or proceedings and shall advise him upon all questions of law arising out of the administration of this chapter.

§ 32-2112 Admissibility of certified copies of department records in evidence

Properly certified copies of records of the department or documents filed therein shall be received in evidence in all courts of the state equally and with like effect as the originals.

§ 32-2113 Recorded disclosure for territory in the vicinity of a military airport or ancillary military facility

A. The commissioner shall execute and record in the office of the county recorder in each county in this state that includes territory in the vicinity of a military airport or ancillary military facility as defined in section 28-8461 a document, applicable to property located within territory in the vicinity of a military airport or ancillary military facility, with the following disclosure: "This property is located within territory in the vicinity of a military airport or ancillary military facility and may be subject to increased noise and accident potential."

B. The attorney general shall prepare in recordable form the document that is executed and recorded by the commissioner pursuant to this section.

C. The document that is executed and recorded by the commissioner shall include a legal description of the territory in the vicinity of a military airport or ancillary military facility. The military airport shall cause the legal description of territory in the vicinity of the military airport or ancillary military facility defined in section 28-8461 to be prepared and shall provide the legal description to the commissioner and the state land department in recordable form in twelve point font on eight and one-half inch by eleven inch paper.

D. The state land department shall prepare maps with the legal descriptions pursuant to section 37-102.

§ 32-2114 Recorded disclosure for land under a military training route or restricted air space

A. The commissioner shall execute and record in the office of the county recorder in each county in this state that includes land under a military training route as defined in section 28-8461 and as delineated in the military training route map prepared by the state land department pursuant to section 37-102 a document, applicable to land under a military training route as delineated in the military training route map, disclosing that the land is under a military training route.

B. The commissioner shall execute and record in the office of the county recorder in each county in this state that includes land under restricted air space as delineated in the restricted air space map prepared by the state land department pursuant to section 37-102 a document, applicable to land under restricted air space as delineated in the restricted air space map, disclosing that the land is under restricted air space.

C. If a military training route changes and people who were notified pursuant to subsection A of this section no longer have property under a military training route as delineated in the military training route map, the commissioner shall execute and record in the office of the county recorder in the county in which the property is located a document disclosing that the land is not under a military training route.

D. If restricted air space changes and people who were notified pursuant to subsection B of this section no longer have property under restricted air space as delineated in the restricted air space map, the commissioner shall execute and record in the office of the county recorder in the county in which the property is located a document disclosing that the land is not under restricted air space.

E. The attorney general shall prepare in recordable form the documents that are executed and recorded by the commissioner pursuant to this section.

F. The documents that are executed and recorded by the commissioner pursuant to this section shall include a legal description of the military training route as delineated in the military training route map and a legal description of the restricted air space as delineated in the restricted air space map.

§ 32-2114.01 Military electronics range

A. The commissioner shall execute and record in the office of the county recorder in each county in this state that includes a military electronics range as delineated in the military electronics range map prepared by the state land department pursuant to section 37-102 a document that applies to land contained in a military electronics range and that discloses that the land is contained in a military electronics range.

B. If a military electronics range changes and persons who were notified pursuant to subsection A of this section no longer have property contained in a military electronics range as delineated in the military electronics range map, the commissioner shall execute and record in the office of the county recorder in the county in which the property is located a document disclosing that the land is not contained in a military electronics range.

C. The attorney general shall prepare in recordable form the documents that are executed and recorded by the commissioner pursuant to this section.

D. The documents that are executed and recorded by the commissioner pursuant to this section shall include a geospatial description of the military electronics range as delineated in the military electronics range map.

§ 32-2114.02 Military installation; range; Arizona national guard site; applicability; definitions

A. The commissioner shall execute and record in the office of the county recorder in each county that includes a military installation or range or Arizona national guard site, as delineated in the maps prepared by the state land department pursuant to section 37-102, a document that applies to land contained in an influence area and that discloses that the land is contained in an influence area.

B. If a military installation or range or Arizona national guard site changes and persons who were notified pursuant to subsection A of this section no longer have property contained in an influence area, as delineated in the military installations or ranges or Arizona national guard site map, the commissioner shall execute and record in the office of the county recorder in the county in which the property is located a document disclosing that the land is not contained in an influence area.

C. The attorney general shall prepare in recordable form the documents that are executed and recorded by the commissioner pursuant to this section.

D. The documents that are executed and recorded by the commissioner pursuant to this section shall include a geospatial description of the influence areas as delineated in the military installation or range and Arizona national guard site map.

E. This section does not apply to any military airport or ancillary military facility as defined in section 28-8461.

F. For the purposes of this section, "influence area" and "military installation or range or Arizona national guard site" have the same meanings prescribed in sections 9-500.50 and 11-818.01.

§ 32-2115 Department's website; military training route map; restricted air space map; military electronics range map; military installation, range and Arizona national guard site influence area map

The department shall post on its website the following maps prepared by the state land department as prescribed by law:

1. The military training route map.

2. The restricted air space map.

3. The military electronics range of a military installation.

4. A military installation or range or Arizona national guard site influence area map.

§ 32-2116 Military airspace working group; contact information; posting

The department shall post the contact information for the Arizona military airspace working group on the department's website.

§ 32-2117 Earth fissure maps; posting; immunity

A. On receipt of maps from the Arizona geological survey, the state real estate department shall provide any earth fissure map to any member of the public in printed or electronic format on request and provide access on its website to the earth fissure maps prepared by the Arizona geological survey pursuant to section 27-106, subsection A, paragraph 3. The following notice shall be displayed below each map:

Notice

The state of Arizona has made a reasonable effort to ensure the accuracy of this map when it was produced, but errors may be present and the state of Arizona does not guarantee its accuracy. The map supplements, and is not a substitute for, a professional inspection of property for defects and conditions.

B. This section does not deny a person rights guaranteed by the Arizona Constitution, and notwithstanding any other law, a subdivider, owner or licensee is not liable to any person or governmental entity for any act or failure to act in connection with:

1. The disclosure of real estate subject to earth fissures if the subdivider, owner or licensee provides a written disclosure or includes notice in a public report, issued pursuant to section 32-2183 or 32-2195.03, with respect to real estate subject to earth fissures, of the map and website described in subsection A of this section. The written disclosure or notice in a public report, issued pursuant to section 32-2183 or 32-2195.03, of the map and website does not create an independent cause of action.

2. Any disclosure that occurred before the date the map described in subsection A of this section is posted on the website if the subdivider, owner or licensee had no actual knowledge that the land was subject to earth fissures before the map was posted.

§ 32-2118 Competition with private enterprise; prohibition

The department shall not create, endorse or sponsor any activity that may be legally performed by a licensee in any way that constitutes competition with the private sector, unless there is no licensee that is capable and willing to create, endorse or sponsor the activity. This section does not apply to license approval processes or procedures under this chapter or to educational activities under section 32-2107.

§ 32-2119 Consumer education; water supply definitions; map

A. The department of real estate shall post on its website information advising prospective home buyers to investigate water availability before purchasing real property and shall include a link to the website of the department of water resources for definitions of the following terms that apply in areas of the state outside active management areas, as required by section 45-108.05:

1. Adequate water supply.

2. Inadequate water supply.

3. Property served by a water provider currently designated as having an adequate water supply.

4. No water supply determination.

B. The department of real estate shall display on its website a current map of all areas in this state that are outside active management areas established pursuant to title 45, chapter 2, article 2.

Article 2 Licensing

§ 32-2121 Applicability of article; exceptions

A. This article does not apply to:

1. A natural person, a corporation through its officers, a partnership through its partners or a limited liability company through its members or managers that deals in selling, exchanging, purchasing, renting, leasing, managing or pledging the person's or entity's own property, including cemetery property and membership camping contracts, and that does not receive special compensation for a sales transaction or does not receive special compensation or other consideration, including property management fees or consulting fees for any property management services performed, if the majority of an officer's, partner's, member's or manager's activities do not involve the acts of a real estate broker, cemetery broker or membership camping broker as defined in section 32-2101.

2. A person holding a valid power of attorney that is being used for a specific purpose in an isolated transaction and not as a method of conducting a real estate business.

3. An attorney performing the attorney's duties as an attorney. This paragraph does not allow an attorney to otherwise engage in any acts requiring a license under this article.

4. Any receiver, a trustee in bankruptcy or any other person acting under an order of a court.

5. A trustee selling under a deed of trust.

6. Natural persons who are acting as residential leasing agents or on-site managers of residential rental property, who are performing residential leasing activities on residential income property at not more than one location during the period of the agents' or on-site managers' regular workday, who do not receive special compensation for the acts described in subdivisions (a) through (e) of this paragraph and who are employed by the owner or the owner's licensed management agent to perform the duties customarily associated with that employment. A bonus that is paid to a residential leasing agent or on-site manager working under the supervision of a licensed real estate broker and that is based on performance, that is received not more frequently than monthly and that does not exceed one-half of the agent's or on-site manager's total compensation for the time period does not constitute special compensation for the acts described in subdivisions (a) through (e) of this paragraph. For the purposes of this paragraph, "residential leasing agents or on-site managers" means natural persons who are employed by the owner or the owner's licensed management agent and whose normal duties and responsibilities include any one or a combination of the following:

(a) Preparing and presenting to any person a residential lease, application or renewal or any amendment of the lease.

(b) Collecting or receiving a security deposit, a rental payment or any related payment for delivery to and made payable to a property, a property manager, an owner or the location.

(c) Showing a residential rental unit to any prospective tenant.

(d) Executing residential leases or rental agreements adopted under title 33, chapter 10.

(e) Acting on behalf of the owner or the owner's licensed management agent to deliver notice pursuant to title 12, chapter 8 and title 33, chapters 10 and 11.

7. Any officer or employee of a governmental agency who is not a contract or temporary employee of the agency in conducting the officer's or employee's official duties.

8. One natural person who acts as a property manager for one nonresidential income property or for two or more contiguous nonresidential income properties that are under common ownership and who is employed by the owner or the owner's licensed management agent to perform the duties customarily associated with that employment.

9. Natural persons who are employed by an employing broker, a person otherwise licensed under this chapter or a person or entity exempt under this section, who are unlicensed and perform clerical, bookkeeping, accounting and other administrative and support duties, who are not engaged in any other acts requiring a license under this chapter and whose employment is not conditioned on or designed to perform duties otherwise requiring a license under this chapter.

10. Natural persons who are employed by an employing broker and who perform telemarketing services that are limited to soliciting interest in engaging the services of a licensee or broker or gathering demographic information that will be used by a licensee or broker to solicit prospective buyers, sellers, lessees and lessors.

11. Communications media or their representatives that are primarily engaged in advertising real estate and that perform no other acts requiring a real estate license, if:

(a) The communications media or their representatives do not, directly or indirectly, compile or represent that they compile information about specific prospective purchasers or tenants, except that general information about prospective purchasers or tenants, such as demographic and marketing information, may be compiled.

(b) The communications media or their representatives do not make representations to prospective real property sellers or landlords, or their representatives, concerning specific prospective purchasers or tenants or specific sales or leasing leads.

(c) The fee charged for advertising is based solely on the advertising services provided.

(d) The advertisements provide for direct contact between the seller or landlord and the prospective buyers or tenants, or for contact through a licensed real estate broker or property management firm. The communications media or their representatives shall not act as intermediaries or assist in any intermediary action between prospective parties to a real estate transaction, except that additional information about advertised properties may be provided to prospects on request.

12. Persons who perform residential property management services or marketing and promotional services solely for nursing care institutions as defined in section 36-401 or pursuant to life care contracts as defined in section 20-1801.

13. A person who offers to sell or lease property that constitutes a security as defined in section 44-1801 and that is offered, sold or leased in compliance with title 44, chapter 12 if the person is a registered securities dealer or salesperson pursuant to title 44, chapter 12, article 9.

14. A person who manages a hotel, motel or recreational vehicle park.

15. A person who, on behalf of another, solicits, arranges or accepts reservations or monies, or both, for occupancies of thirty-one or fewer days in a dwelling unit.

16. An escrow agent in performing the escrow agent's duties as an escrow agent, a title insurer in performing the title insurer's duties as a title insurer or a title insurance agent in performing the title insurance agent's duties as a title insurance agent. This paragraph does not allow an escrow agent, a title insurer or a title insurance agent to otherwise engage in acts requiring a license under this article.

17. Notwithstanding paragraph 1 of this subsection, a corporation through its officers and employees that purchases, sells, exchanges, rents, leases, manages or pledges its property if both of the following apply:

(a) The activity is only incidental to the business of the corporation.

(b) The officers and employees engaged in the activity do not receive special compensation or other consideration for the activity.

18. A trust company owned by a bank holding company regulated by the federal reserve board or a bank in exercising its fiduciary duties under the terms of a trust agreement to which real property is subject.

19. A person who receives a finder fee pursuant to section 32-2176 or 32-2197.21.

B. The commissioner may grant an exemption from the licensure requirements of this article to any corporation that applies for an exemption on a finding that both of the following apply:

1. The corporation is a nonprofit corporation that provides project-based housing services and operates solely as a charitable organization as defined in section 44-6551.

2. The corporation's sole activities related to real estate involve ownership or management of residential property owned or controlled by the corporation.

§ 32-2122 License required of brokers and salespersons

A. This article applies to any person acting in the capacity of a:

1. Real estate broker.

2. Real estate salesperson.

3. Cemetery broker.

4. Cemetery salesperson.

5. Membership camping broker.

6. Membership camping salesperson.

B. It is unlawful for any person, corporation, partnership or limited liability company to engage in any business, occupation or activity listed in subsection A of this section without first obtaining a license as prescribed in this chapter and otherwise complying with this chapter.

C. A person, corporation, partnership or limited liability company that is licensed as a salesperson or broker pursuant to this article or that is engaging in any work for which a license is required under this article is subject to the requirements of this chapter in performing any acts included in the definition of a broker unless otherwise provided in this chapter.

D. Except as otherwise provided in this subsection, any act, in consideration or expectation of compensation, that is included in the definition of a real estate broker, cemetery broker or membership camping broker, whether the act is an incidental part of a transaction or the entire transaction, constitutes the person offering or attempting to perform the act of a real estate broker or real estate salesperson, a cemetery broker or cemetery salesperson or a membership camping broker or a membership camping salesperson within the meaning of this chapter. A person who is not a licensee may collect in-person rent and related fees for the use of real estate as part of the person's clerical duties if the person works for a licensee, the rent collection is on behalf of the licensee and the person provides a receipt when rent is paid.

§ 32-2123 Application for license as broker or salesperson

A. Every application for an original license shall be either submitted in writing and signed by the applicant or submitted electronically and contain an electronic or digital identifier that the commissioner deems appropriate. The application shall be accompanied by all applicable fees.

B. An application for an original license as a broker or salesperson shall set forth:

1. The applicant's address of record and legal name and any derivative of the applicant's first name or middle name or a nickname that the applicant regularly uses for advertising purposes.

2. Whether the applicant has ever been convicted of a felony and, if so, the nature of the felony, where and when the felony was committed and the disposition of the conviction, or whether the applicant has been disbarred or suspended from the practice of law.

3. Whether the applicant has ever been refused a broker's or salesperson's license or any other occupational license in this or any other state, whether the applicant's license as a broker or salesperson has been revoked or suspended in this or any other state or whether the applicant has had any other occupational or professional license, certificate or registration revoked or suspended in this or any other state.

4. The name of any corporation, company or partnership that is or ever has been licensed by the department in which the applicant exercised any control.

5. If the applicant is a natural person, the applicant's social security number. If the applicant, due to bona fide religious convictions or other bona fide reasons that the applicant documents on the application to the satisfaction of the commissioner, does not have a social security number, the applicant may provide the applicant's federal tax identification number with the application. The state real estate department shall use the applicant's social security number or federal tax identification number to aid the department of economic security in locating noncustodial parents or the assets of noncustodial parents, and for no other purpose.

C. An application for a license as a broker additionally shall set forth:

1. The name under which the business is to be conducted.

2. The applicant's address of record.

D. An applicant for a broker's or salesperson's license shall provide information that the commissioner determines is reasonably necessary. The information may include:

1. Prior criminal records.

2. A valid fingerprint clearance card issued pursuant to section 41-1758.03.

3. An affidavit setting out whether the applicant has participated in, operated or held an interest in any land development company that has filed, or is subject to, a petition under any chapter of the federal bankruptcy act.

§ 32-2124 Qualifications of licensees

A. Except as otherwise provided in this chapter, the commissioner shall require proof, through the application or otherwise, as the commissioner deems advisable with due regard to the interests of the public, as to the competency of the applicant and shall require that the applicant has:

1. If for an original real estate broker's license, been an active licensed real estate salesperson or real estate broker for at least three years during the five years immediately preceding the time of application.

2. If for an original cemetery broker's license, either a current real estate broker's license, or if the applicant does not have a current real estate broker's license, at least three years' actual experience as a cemetery salesperson or cemetery broker or as a licensed real estate salesperson or licensed real estate broker during the five years immediately preceding the time of application.

3. If for an original membership camping broker's license, either a current real estate broker's license, or if the applicant does not have a current real estate broker's license, at least three years' actual experience as a licensed membership camping salesperson or licensed membership camping broker or as a licensed real estate salesperson or licensed real estate broker during the five years immediately preceding the time of application.

4. If for any type of broker's or salesperson's license, not had a license denied within one year immediately preceding application in this state pursuant to section 32-2153 or a similar statute in any other state.

5. If for any type of broker's or salesperson's license, not had a license revoked within the two years immediately preceding application in this state pursuant to section 32-2153 or a similar statute in any other state.

6. If reapplying for a license that expired more than one year before the date of application, met all current education and experience requirements and retakes the examination the same as if the applicant were applying for the license for the first time.

7. If for a real estate broker's, cemetery broker's or membership camping broker's license, other than a renewal application, an equivalent amount of active experience within the immediately preceding five years in the field in which the applicant is applying for the broker's license, as a substitute for the licensed active experience otherwise required in paragraphs 1, 2 and 3 of this subsection. The licensed active experience required may be met if the applicant can demonstrate to the commissioner's satisfaction that the applicant has an equivalent amount of experience in the past five years that, if the applicant had held a license, would have been sufficient to fulfill the licensed experience requirement.

B. All applicants other than renewal applicants under section 32-2130 for a real estate salesperson's license shall show evidence satisfactory to the commissioner that they have completed a real estate salesperson's course that is prescribed and approved by the commissioner and that is at least ninety classroom hours, or the equivalent, of instruction in a real estate school certified by the commissioner and have satisfactorily passed an examination on the course. An applicant may complete the real estate salesperson's course prescribed by this subsection through a live classroom course or a distance learning course if the live classroom course or distance learning course is offered by a real estate school that is certified by the commissioner. The applicant must complete a proctored examination on the live classroom course or the distance learning course in person. An applicant may complete the required course or instructional segments in any combination of in-person or synchronous remote delivery methods. The real estate salesperson's course completion or its equivalent may not be more than ten years before the date of application unless, at the time of application, the commissioner determines in the commissioner's discretion that the applicant has work experience in a real estate-related field and education that together are equivalent to the prelicensure education requirement. Except as provided in section 32-4302, the commissioner may waive all or a portion of the prelicensure course requirement, other than the twenty-seven-hour Arizona-specific course, for an applicant who holds a current real estate license in another state.

C. All applicants other than renewal applicants under section 32-2130 for a real estate broker's license shall show evidence satisfactory to the commissioner that they have completed a real estate broker's course that is prescribed and approved by the commissioner and that is at least ninety classroom hours, or the equivalent, of instruction in a real estate school certified by the commissioner and have satisfactorily passed an examination on the course. An applicant may complete the real estate broker's course prescribed by this subsection through a live classroom course or a distance learning course if the live classroom course or distance learning course is offered by a real estate school that is certified by the commissioner. The applicant must complete a proctored examination on the live classroom course or distance learning course in person. An applicant may complete the required course or instructional segments in any combination of in-person or synchronous remote delivery methods. The real estate broker's course completion or its equivalent may not be more than ten years before the date of application unless, at the time of application, the commissioner determines in the commissioner's discretion that the applicant has work experience in a real estate-related field and education that together are equivalent to the prelicensure education requirement. Except as provided in section 32-4302, the commissioner may waive all or a portion of the prelicensure course requirement, other than the twenty-seven-hour Arizona-specific course, for an applicant who holds a current real estate license in another state.

D. Before receiving any license provided for by this chapter, an applicant must be at least eighteen years of age.

E. The commissioner shall ascertain by a written, electronic or other examination method that an applicant for a real estate license has:

1. An appropriate knowledge of the English language, including reading, writing and spelling, and of arithmetical computations common to real estate practices.

2. At a minimum, an understanding of the general purpose and legal effect of any real estate practices, principles and related forms, including agency contracts, real estate contracts, deposit receipts, deeds, mortgages, deeds of trust, security agreements, bills of sale, land contracts of sale and property management, and of any other areas that the commissioner deems necessary and proper.

3. A thorough understanding of the obligations between principal and agent, the principles of real estate and business opportunity practice, the applicable canons of business ethics, this chapter and rules adopted pursuant to this chapter.

4. An appropriate knowledge of other real estate practices and principles as determined by the commissioner.

F. The commissioner shall ascertain by a written, electronic or other examination method that an applicant for a license as a cemetery broker or a cemetery salesperson has:

1. Appropriate knowledge of the English language, including reading, writing and spelling, and of elementary arithmetic.

2. A general understanding of:

(a) Cemetery associations, cemetery corporations and duties of cemetery directors and officers.

(b) Plot ownership, deeds, certificates of ownership, contracts of sale, liens and leases.

(c) Establishing, dedicating, maintaining, managing, operating, improving, preserving and conducting a cemetery.

(d) The provisions of this chapter and rules adopted pursuant to this chapter relating to the organization and regulation of cemeteries and the licensing and regulation of cemetery brokers and cemetery salespersons.

3. A general understanding of the obligations between principal and agent, the principles of cemetery practice and the canons of business ethics pertaining to the operation of cemeteries and the sale of cemetery property.

G. The commissioner shall ascertain by a written, electronic or other examination method that an applicant for a license as a membership camping broker or a membership camping salesperson has:

1. An appropriate knowledge of the English language, including reading, writing and spelling, and of elementary arithmetic.

2. A general understanding of:

(a) The general purposes and legal effect of contracts and agency contracts.

(b) Establishing, maintaining, managing and operating a membership campground.

(c) The provisions of this chapter and rules adopted pursuant to this chapter relating to the organization and regulation of membership campgrounds and the licensing and regulation of membership camping brokers and membership camping salespersons.

3. A general understanding of the obligations between principal and agent and the canons of business ethics pertaining to the operation and promotion of membership campgrounds.

H. A renewal applicant for a real estate broker's, cemetery broker's or membership camping broker's or real estate salesperson's, cemetery salesperson's or membership camping salesperson's license is not required to submit to an examination if the application is made within twelve months after the license expires and the license is not canceled, terminated or suspended at the time of application.

I. The examination for a broker's license shall be more exacting and stringent and of a broader scope than the examination for a salesperson's license.

J. An applicant for a real estate salesperson's or real estate broker's license who currently holds at least an equivalent license in another state is exempt from taking the national portion of the real estate examination pursuant to section 32-4302.

K. Identification of each applicant whose licensing requirement was allowed to be met by an equivalent alternative pursuant to this section shall be included in the annual performance evaluation presented by the board to the governor pursuant to section 32-2104.

L. An applicant for an original real estate salesperson's license, after completing the requirements of subsection B of this section, shall provide certification to the department at the time of application evidencing completion of six hours of instruction in real estate contract law and contract writing. This instruction shall include participation by the applicant in drafting contracts to purchase real property, listing agreements and lease agreements.

M. The commissioner shall not issue a license to a person who has been convicted of a felony offense and who is currently incarcerated for the conviction, paroled or under community supervision and under the supervision of a parole or community supervision officer or who is on probation as a result of the conviction.

N. The commissioner shall require an out-of-state applicant for a license that is issued pursuant to section 32-4302 to pass an examination specific to the laws of this state relating to this chapter before the commissioner issues the license to the applicant.

§ 32-2125 Licenses for corporations, limited liability companies or partnerships

A. A corporation, limited liability company or partnership applying for a broker's license for the entity shall designate a natural person who is licensed as a broker and who is an officer of the corporation, manager of the limited liability company if management of the limited liability company is vested in one or more managers, member of the limited liability company if management is vested in the members or partner of the partnership who shall act as designated broker. The license shall extend no authority to act as designated broker to any other person. This subsection does not apply to a corporation or limited liability company applying for a license under subsection B of this section. An entity's broker's license issued pursuant to this subsection shall run concurrently with the corporation's, limited liability company's or partnership's designated broker's license.

B. An employing broker may engage the services of salespersons and associate brokers who act through and on behalf of professional corporations or professional limited liability companies that are licensed by the department. A designated broker who acts on behalf of an employing real estate entity is allowed to become a professional corporation or a professional limited liability company. Any person so engaged shall be separately licensed. The department shall issue to or renew a license under this subsection only for a professional corporation or a professional limited liability company whose shareholders, members or managers hold active real estate licenses. A corporation licensed under this subsection shall meet the requirements of title 10, chapter 20. A limited liability company licensed under this subsection shall meet the requirements of title 29, chapter 7, article 11. A professional corporation or professional limited liability company shall not be licensed as an employing broker.

C. The license of a corporation or limited liability company licensed under subsection B of this section terminates only on the death of a shareholder, member or manager or any other change of shareholders, members or managers, except that any remaining shareholder, member or manager who was an authorized officer and shareholder before the change remains authorized to continue business under the corporation's or limited liability company's license for up to an additional ninety days pending the issuance of a new license or installation of a new designated broker. The corporation or limited liability company may not assume representation for new clients while a new license is pending or until a new designated broker is added to the entity's license.

D. The commissioner may suspend, revoke or deny renewal or the right of renewal of the license of a corporation, limited liability company or partnership licensed under this section if the corporation, limited liability company or partnership or any shareholder, officer, agent, partner or member of a corporation, limited liability company or partnership violates any of the provisions of this chapter.

E. An entity that is licensed pursuant to this chapter may not have a person named as the designated broker on the license if the person is or was named as a designated broker or the equivalent of a designated broker on any other license in this state or in another state and any of the following applies:

1. The person is under an order to cease and desist from engaging in real estate activity.

2. The person's license is under suspension.

3. The person's license was revoked in the previous two years and the revocation was for an act or omission that occurs while the person is or was named on the license.

F. This section does not enlarge the functions of salespersons, allow salespersons to assume any of the responsibilities or functions of brokers or relieve the commissioner of any regulatory power or authority over salespersons or brokers.

G. A corporation, limited liability company or partnership licensed under subsection A of this section or a professional corporation or professional limited liability company licensed under subsection B of this section is exempt from the education requirements imposed pursuant to this chapter. The commissioner shall not charge a license fee or a renewal fee pursuant to section 32-2132 to a corporation, professional corporation, limited liability company, professional limited liability company or partnership licensed or approved under this section.

H. A corporation, limited liability company or partnership licensed under this section shall report to the department within ten days:

1. Any change in officers, directors, members, managers or partners or any change of control of the entity.

2. Any amendment to its articles of incorporation or organization or to its partnership agreement.

3. If a corporation, when a person becomes an owner of ten percent or more of the stock in the corporation.

4. The dissolution of the corporation, limited liability company or partnership.

§ 32-2125.01 Issuance of license; multiple licenses; use

A. When the requirements for application, examination and payment of fees are completed to the satisfaction of the commissioner, the commissioner shall issue the license applied for to the applicant. Any person who has passed the state examination for broker or salesperson must become licensed within one year from the date of the examination. Failure to comply with this section will necessitate the submission to and passing of another examination.

B. Not more than one license shall be issued and outstanding to or in favor of a licensee at any one time, except that a person licensed as a real estate broker or real estate salesperson may engage in cemetery or membership camping sales activities without being separately licensed to engage in these activities. A real estate licensee may have only one employing broker in each of the following categories:

1. Cemetery.

2. Membership camping.

3. Real estate.

C. A designated or employing real estate broker may engage in cemetery or membership camping sales activities and may employ cemetery and membership camping salespersons and associate brokers without being separately licensed as a cemetery or membership camping broker or salesperson.

§ 32-2125.02 Nonresident licensees; service of process; employment

A. An application for and acceptance of a license as a nonresident salesperson or broker shall be deemed to constitute irrevocable appointment of the commissioner as the agent or attorney in fact of the licensee for the acceptance of service of process issued in this state in any action or proceeding against the licensee arising out of the licensing, out of transactions under the license or in any action that may result in payment from the real estate recovery fund.

B. Duplicate copies of any process shall be served on the commissioner. The plaintiff at the time of service shall pay the commissioner $15, taxable as costs in the action. On receiving this service the commissioner shall promptly forward a copy of the service by certified mail to the licensee at the licensee's last address of record with the commissioner. Process served on the commissioner pursuant to this subsection constitutes service of process on the licensee as though the licensee were personally served with the process in this state.

C. A nonresident licensee shall accept employment or compensation as a nonresident licensee only under section 32-2155 and only from a broker who is actively licensed in this state.

D. A nonresident broker shall maintain in this state the records required by section 32-2151.01 and shall notify the commissioner of the address where the records are kept or may use online recordkeeping if the data is backed up and the nonresident broker notifies the department of the name of and contact information for the online recordkeeping provider.

E. Pursuant to section 32-4302, a broker license or salesperson license applicant who does not reside in this state is required to successfully pass the portion of the examination that is specific to this state's real estate practice and laws.

F. The commissioner may adopt rules necessary for the regulation of nonresident licensees.

§ 32-2125.03 Confidentiality of licensee's residential address, electronic mail address, residential telephone number and social security number

A. Notwithstanding any other law, a licensee's or applicant's residential address or residential telephone number maintained by the department shall not be available to the public unless the commissioner determines that disclosure of the residential address or residential telephone number, or both, serves the interests of justice and is in the public interest.

B. A licensee's or applicant's electronic mail address shall not be released or made available for inspection to any person other than a court or a governmental agency that will use the electronic mail address for a legitimate court or governmental purpose.

C. The residential address, electronic mail address and residential telephone number of a licensee whose license is placed on inactive status are confidential unless the commissioner determines that disclosure of the addresses and telephone number serves the interests of justice and is in the public interest.

D. The department may not release a licensee's social security number or make a licensee's social security number available for inspection by any person other than a court or a governmental agency that will use the information for a legitimate governmental purpose.

§ 32-2126 Place of business or statutory agent required; notice of change; failure to give notice as cancellation of license; signage

A. Each employing broker shall have and maintain a definite place of business or an active and valid statutory agent on file with the corporation commission. The employing broker must notify the department of the definite place of business or the valid statutory agent. Notice of a change of business location or statutory agent shall be given to the commissioner in writing. Change or abandonment of a business location or statutory agent without notice shall automatically cancel the employing broker's license and shall sever the license of any salesperson or associate broker employed by the employing broker. If an employing broker's license is cancelled pursuant to this subsection and the employing broker's license is later reinstated, any salesperson or associate broker employed by the employing broker whose license was severed pursuant to this subsection may be rehired.

B. Each designated broker and, if applicable, each employing broker shall cause a sign to be affixed at the entrance to the broker's place of business, in a place and position clearly visible to all entering the place of business, with the name of the broker, the name under which the broker is doing business if other than the broker's given name, and sufficient wording to establish that the person is a real estate broker, cemetery broker or membership camping broker. In addition to any other applicable law, the sign shall conform to rules adopted by the commissioner.

C. On removal from any location the broker shall remove the sign from the location. A broker shall not display any name at designated places of business named in the broker's license other than the name under which the broker is licensed.

§ 32-2127 Licenses for additional places of business; branch office manager; broker's temporary absence

A. If a broker maintains more than one place of business within the state, the broker shall procure an additional license for each branch office maintained.

B. Branch office licenses shall be issued in the same name as the principal office license is issued, and the license must be posted in the branch office. Branch office signs shall conform to the provisions for the principal office and shall include the designation "branch office".

C. Each branch office shall be under the management of a broker or a licensed salesman.

D. If a designated broker is unable to act within twenty-four hours, the designated broker may designate a licensee whom the designated broker employs or another designated broker to act in the designated broker's behalf. The designated broker shall make this designation in writing and shall keep the original designation at the designated broker's office for one year from its effective date. A copy of this designation must be attached to any hire, sever or renewal form submitted to the department that is signed by the designated broker's designee. This designation shall not exceed thirty days' duration and may authorize the designee to perform any duties the designated broker may legally perform, except that a salesperson is not authorized to hire or sever licensees. A written designation is required for each temporary absence.

§ 32-2128 Display and possession of license certificates; electronic records

A. The designated broker's and, if applicable, the employing broker's license certificate shall be prominently displayed in the office of the broker, and all other license certificates shall be readily available. A salesperson's or associate broker's license certificate shall remain in the possession of the employer until it is cancelled, terminated, suspended or revoked by the department or until the licensee is severed from employment, when the designated broker shall dispose of the license certificate.

B. A designated broker may comply with the possession requirements for a salesperson's or associate broker's license certificate prescribed by subsection A of this section by doing both of the following:

1. Accessing the licensee's record in the department's public database that the department posts on its website.

2. Printing a copy of the record that shows current and active licensure or having the record available electronically.

§ 32-2129 Advance payment of license fees

A. All license fees shall be paid in advance and shall be the same regardless of the time of the year the license is issued.

B. If the license fees or other fees that relate to licensure are paid with a check that is not honored by the financial institution on which it is written, the department may deny or cancel the license.

C. An original license shall be for a period of two years up to and including the last day of the month in which the license was granted. A renewal license shall be effective as of the date of issuance, but no earlier than the first day after the expiration of the previous license. Regardless of the date of issuance, the renewed license is for a two year period beginning on the first day after the expiration of the previous license.

D. License applicants shall pay fees as specified in this chapter.

§ 32-2130 Renewal of licenses; education requirements; broker licensee renewal as salesperson licensee

A. Except as provided in subsection K of this section, a license may be renewed in a timely manner by filing an application for renewal in the manner prescribed by the commissioner, by paying the renewal fee specified in this chapter and by presenting evidence of attendance at a school certified by the commissioner during the preceding license period of twenty-four credit hours for salespersons and associate brokers and thirty credit hours for designated brokers or for associate brokers employed by a designated broker pursuant to section 32-2151.01, subsection G, or a lesser number of credit hours prescribed by the commissioner, of real estate oriented continuing education courses prescribed and approved by the commissioner. The total number of credit hours shall be accrued at a rate of twenty-four credit hours for salespersons and associate brokers and thirty credit hours for designated brokers or for associate brokers employed by a designated broker pursuant to section 32-2151.01, subsection G during each twenty-four-month period of licensure. The department shall maintain a current list of approved courses. The commissioner may waive all or a portion of the continuing education requirement for good cause shown. The commissioner shall determine by rule the content of the renewal credit hours. The renewal credit hours may include the commissioner's current topics, including short sales. For the purposes of this subsection, "short sales" means real estate transactions in which the sales price is insufficient to pay the loan encumbering the property in addition to the costs of sale and the seller is unable to pay the difference.

B. If an applicant is renewing a license within one year after it expired, the applicant may apply continuing education hours completed after the expiration toward the continuing education required for renewal.

C. Each renewal application shall contain, as applicable, the same information required in an original application pursuant to section 32-2123.

D. Cemetery brokers and salespersons and membership camping brokers and salespersons are exempt from the educational requirements of this section.

E. This section does not require a licensee to attend department produced or sponsored courses if approved courses are otherwise available.

F. Between the expiration date of the license and the date of renewal of the license, the rights of the licensee under the license expire. While the license is expired it is unlawful for a person to act or attempt or offer to act in a manner included in the definition of a real estate, cemetery or membership camping broker or salesperson. If the license of an employing broker expires under this subsection, the licenses of persons who are employed by the employing broker shall be severed from the employing broker on the license expiration date of the employing broker. These persons may be rehired on renewal of the employing broker's license. The department shall terminate a license that has been expired for more than one year.

G. Except as provided in section 32-4301, not more than one year after the license expiration date, the department shall renew a license without requiring the applicant to submit to an examination if the applicant held a license that was not canceled or suspended at the time of expiration. Except as provided in section 32-4301, the license period for a license renewed pursuant to this subsection commences the day after the expiration date of the expired license. Except as provided in section 32-2131, subsection A, paragraph 4 or 6, an applicant whose license has been terminated or revoked does not qualify for license renewal.

H. Any employee or immediate family member of any employee of this state who, pursuant to section 32-2110 or any other law, rule or requirement, is prohibited from using a license issued under this chapter shall have, on the request of the employee or family member, the license placed on inactive status, shall have the right to renew the license and shall not be required to pay further fees until the employee or family member is again eligible to use the license. Renewal fees for the license shall not be required for only as long as the employee or family member is prohibited from using the license.

I. The department shall not renew the license of a person who has been convicted of a felony offense and who is currently incarcerated for the conviction, paroled or under community supervision and under the supervision of a parole or community supervision officer or who is on probation as a result of the conviction. This subsection does not limit the commissioner's authority and discretion to deny the renewal for any other reason pursuant to this chapter.

J. A real estate broker licensee may renew as a real estate salesperson licensee without having to meet the requirements prescribed by section 32-2124, subsection B. If a person renews as a real estate salesperson pursuant to this subsection, the person shall pay the salesperson's renewal fee as prescribed in section 32-2132. If the person subsequently wants to obtain a real estate broker license, the person must meet the requirements of this chapter, including the requirements prescribed by section 32-2124, subsection C.

K. A licensee with an inactive license does not need to complete continuing education credit hours during the period that the license is inactive. If the licensee applies with the department to change the license status to active:

1. The commissioner may require the licensee to complete continuing education credit hours before activating the license.

2. In addition to the continuing education requirement described in paragraph 1 of this subsection, if the license has been inactive for more than fifteen years, the commissioner shall require that the applicant successfully pass an examination specific to the laws of this state relating to this chapter before activating the license.

L. One year before the fifteen-year period described in subsection K, paragraph 2 of this section expires, the department shall send a notice to a licensee with an inactive license. The notice shall be sent to the licensee's last known address of record maintained by the department and shall disclose the requirements of subsection K of this section.

§ 32-2131 Reinstatement of license

A. The commissioner may reinstate a license that was issued under this article and that expired or was canceled, terminated, suspended or revoked as follows:

1. For a license that expired pursuant to section 32-2130, subsection F, by renewal application pursuant to this article.

2. For a license canceled pursuant to section 32-2126, subsection A or section 32-2129, subsection B or any other lawful authority:

(a) If within the license period, by reapplication and payment of applicable fees.

(b) If after expiration of the license, by original or renewal application, as appropriate, pursuant to this article.

3. For a license terminated pursuant to section 32-2188, subsection I, by:

(a) Repayment in full to the real estate recovery fund.

(b) Original application pursuant to this article.

(c) Providing evidence that the judgment that caused the recovery fund payment has been fully satisfied.

4. For a license terminated pursuant to section 32-2130, subsection F, by original application pursuant to this article.

5. For a license suspended pursuant to section 32-2153, 32-2154 or 32-2157 or any other lawful authority:

(a) If suspended for failure on the part of the licensee to meet procedural or educational requirements for maintaining the license, and the requirements have subsequently been fully met, and the suspension has been vacated:

(i) If within the license period, by reapplication and payment of applicable fees.

(ii) If after expiration of the license, by original or renewal application, as appropriate, pursuant to this article.

(b) If suspended by order of the commissioner for a specified length of time, and the suspension period has ended:

(i) If within the license period, by reapplication and payment of applicable fees.

(ii) If after expiration of the license, by original or renewal application, as appropriate, pursuant to this article.

6. For a license revoked pursuant to section 32-2153 or any other lawful authority, by original application pursuant to this article.

7. For a license suspended or revoked by order of the commissioner and this order is subsequently vacated as to the licensee, by reapplication only. No fees may be assessed. The reapplication may be initiated by the department on behalf of the licensee.

B. Except for canceled licenses, reinstatement of a license pursuant to subsection A of this section shall not be made for any licensee who is the subject of a department investigation into alleged violations of this chapter or of a pending administrative proceeding pursuant to article 3 of this chapter.

C. This section shall not be interpreted to lessen or reduce the qualifications otherwise required of license applicants under this article or the department's authority to deny a person's application for license reinstatement who does not otherwise meet all of the requirements.

§ 32-2132 Fees

A. Except as provided in subsection D of this section, the following fees shall be charged and shall not be refunded by the commissioner after issuance of a receipt for payment:

1. A broker's examination application fee of not more than $125.

2. A broker's examination fee of not more than $100.

3. A broker's license fee of not more than $250.

4. A broker's renewal fee of not more than $400.

5. A salesperson's examination application fee of not more than $75.

6. A salesperson's examination fee of not more than $50.

7. A salesperson's license fee of not more than $125.

8. A salesperson's renewal fee of not more than $200.

9. A branch office broker's license fee or renewal fee of not more than $200.

10. A fee for a change of name and address of licensee on records of the department of not more than $20.

11. A duplicate license fee of $5.

12. A fee for reinstatement of license within the license period of $5.

13. A fee for each certificate of correctness of copy of records or documents on file with the department of $1, plus the cost to the department for reproducing the records or documents.

14. A temporary broker's license fee of not more than $50.

15. A temporary cemetery salesperson's license fee of not more than $50.

16. A membership camping salesperson certificate of convenience fee of not more than $50.

17. Fees in an amount to be determined by the commissioner by rule for the following:

(a) A certificate of approval or renewal to operate a school.

(b) An instructor or other school official approval or renewal fee.

(c) A continuing education live classroom course approval or renewal fee.

(d) A prelicensure education live classroom course or prelicensure distance learning course approval or renewal fee. The prelicensure course fee imposed by this subdivision shall be the same and the renewal course fee imposed by this subdivision shall be the same regardless of the instructional format a person uses to complete a prelicensure education course or instructional segment or a renewal education course or instructional segment.

(e) A continuing education distance learning course approval or renewal fee.

B. A corporation, partnership or limited liability company shall not be assessed a fee for the issuance of a broker's license.

C. The commissioner may contract for the processing of applications and the examination of applicants for licensure. The contract may provide for specific fees or a reasonable range for fees as determined by the commissioner for examination applications and examinations to be paid directly to the contractor by the applicant. These fees may not exceed the amounts prescribed in subsection A, paragraphs 1, 2, 5 and 6 of this section.

D. For good cause shown the commissioner may refund fees previously collected.

§ 32-2133 Temporary broker's license

A. Notwithstanding any other law, the commissioner may issue a temporary license as a broker to a licensed or unlicensed person for the purpose of winding up the existing or pending business of a licensed broker in the following cases:

1. To the surviving spouse or next of kin or to the administrator or personal representative or the employee of the administrator or personal representative of a deceased licensed broker.

2. To the spouse, next of kin, employee, legal guardian or conservator of a licensed broker in a state of disability by sickness, injury or insanity.

B. Each temporary license is for a period of not over ninety days and shall not be extended for a longer period, except that a license issued to a personal representative or administrator or the employee of the personal representative or administrator pursuant to subsection A, paragraph 1 continues until the personal representative or administrator disposes of the deceased broker's business, but not to exceed a period of fifteen months.

C. No more than one temporary license may be issued to or with respect to the same individual within any one year period.

D. A temporary licensee has the same license powers and obligations as under a permanent license.

§ 32-2134 Temporary cemetery salesperson's license

Notwithstanding any other provision of law to the contrary, the commissioner may issue without examination to any person who has applied and otherwise qualifies for a cemetery salesperson's license, a temporary cemetery salesperson's license good for a period not to exceed ninety days from the date of issuance. An applicant shall not be entitled to more than one temporary license without examination. An employing cemetery broker shall certify by affidavit to the commissioner that the temporary license applicant has been trained in applicable Arizona cemetery and contract law.

§ 32-2134.01 Membership camping salesperson certificate of convenience

Notwithstanding any other licensing requirement under this chapter, the commissioner may issue a one time thirty day certificate of convenience without examination to any person who has applied and otherwise qualifies for a membership camping salesperson's license. An employing membership camping broker shall certify by affidavit to the commissioner that the salesperson applicant will be trained in applicable membership camping and contract laws before participation in any offer or sale.

§ 32-2135 Real estate schools; courses of study; instructors; certification

A. Except as provided in section 32-4301, before offering a course of study towards completion of the education requirement for real estate licensure or renewal of licensure, a school shall obtain from the commissioner a certificate of approval or renewal to operate a school for a period of at least four years. A school shall also obtain a certificate of course approval for each course offered for credit that is not currently approved for another school. Each school is responsible for the content of any course it offers and for the professional administration and teaching of the course. Prelicensure education live classroom courses, prelicensure education distance learning courses, continuing education live classroom courses and distance learning continuing education courses are subject to approval pursuant to this section.

B. Each approved school shall issue a certificate of real estate course attendance to each person who completes an approved prelicensure or continuing education course. An applicant for renewal of licensure as provided by section 32-2130 shall file evidence of the certificates issued by the school with the commissioner showing the number of credit hours and course of study required for renewal.

C. The commissioner may withdraw or deny certification or approval of real estate schools, educational courses or real estate instructors for any acts inconsistent with the requirements of this chapter, including:

1. Committing or failing to report a violation by an approved school or instructor of any provision of this chapter or rules adopted pursuant to this chapter.

2. Improperly certifying student attendance or performance.

3. Committing any act that is grounds for discipline under section 32-2153.

4. Teaching information or using course materials that have not been approved by the commissioner.

5. Failing to attend any continuing education course required by the commissioner.

6. Filing any false or misleading application, report or documentation with the department.

7. Teaching course content that is not current or that has substantially changed from the course as approved.

D. A real estate school, through any owner, director, administrator, instructor or other agent, shall not:

1. Offer a course of study for credit that is not approved by the department, except that the school may advertise a course as pending approval before its approval.

2. Promote or advertise the school using false or misleading statistics or testimonials or any other form of deceptive advertisement.

E. The commissioner may determine minimal content requirements for approving educational courses and appropriate professional qualifications for approving instructors to teach individual educational courses.

F. Except as provided in subsection G of this section, at least thirty days before holding a course of study for completion of the education requirements leading to licensure of real estate applicants or for license renewal requirements, an application for a certificate of course approval or renewal must be filed with the department. For a live classroom course, the application shall include a course outline with sufficient detail to clearly identify the scope and content of the course. The outline shall state how the course is intended to protect the public. A prelicensure education course outline that is submitted for approval shall be divided into estimated fifty-minute instructional segments. Course approval shall not be unreasonably withheld and shall not be issued later than thirty days after filing with the department for a live classroom course. A continuing education distance learning course approval shall not be issued later than ninety days after filing with the department. If the approvals under this subsection are not granted within the time frames prescribed by this subsection, the course shall be automatically approved on a provisional basis for one hundred eighty days, unless the department has otherwise notified the applicant of specific deficiencies or unfulfilled requirements for the course submission. A provisional approval may be withdrawn by the department on fifteen days' advance notice if the department's review of the course subsequently reveals course deficiencies or unfulfilled course requirements. If not withdrawn, the course approval shall remain approved for the entire course approval period. Course approval shall be for a period of at least four years if the contents of the course remain current and substantially unchanged. The course may not be taught if the content ceases to be current or is substantially changed. The department may establish by rule additional appropriate requirements for approval of a distance learning course.

G. At least ninety days before holding a distance learning course of study for completion of the education requirements leading to licensure of real estate applicants, an application for a certificate of distance learning course approval must be filed with the department. A distance learning course outline that is submitted for approval shall be divided into estimated fifty-minute instructional segments. Distance learning course approval shall not be unreasonably withheld and shall be issued not later than ninety days after filing with the department. If the approvals under this subsection are not granted within the time frames prescribed by this subsection, the distance learning course shall be automatically approved on a provisional basis for one hundred eighty days, unless the department has otherwise notified the applicant of specific deficiencies or unfulfilled requirements for the distance learning course submission. A provisional approval may be withdrawn by the department on fifteen days' advance notice if the department's review of the distance learning course subsequently reveals course deficiencies or unfulfilled course requirements. If not withdrawn, the distance learning course approval shall remain approved for the entire distance learning course approval period. Distance learning course approval shall be for a period of at least four years if the contents of the distance learning course remain current and substantially unchanged. The distance learning course may not be taught if the content ceases to be current or is substantially changed. Approved distance learning courses must provide for student participation, feedback and remedial instruction. The department may establish by rule additional appropriate requirements for approval of a distance learning course.

H. For a currently approved course or distance learning course:

1. Unless granted an exemption by the commissioner, the school shall submit notice to the department at least fourteen days before holding the course to allow department employees to monitor the course. The notice is not otherwise subject to review and approval by the department.

2. With the permission of the school that received original approval for the course, another school that desires to offer the course is subject only to the fourteen-day notice requirement before holding the same course. No additional review and approval by the department is required.

I. The department shall approve for continuing education credit any course of study proposed by a real estate school if the course satisfies the commissioner's requirements and is held in this state.

J. The department may approve for continuing education credit any course of study proposed by a real estate school if the course satisfies the commissioner's requirements and is held outside this state. On the commissioner's request, the school shall either:

1. Provide the department with a video recording of the course.

2. Make arrangements that are approved by the department for monitoring the course.

K. An instructor shall file with the department an application for instructor approval or renewal. Instructor approval shall be for at least four years after the date of approval and is subject to amendment during the license period only if information material to the instructor's qualifications has changed. A person holding instructor approval to teach specific subject matter is not subject to additional or duplicate approval requirements during the original approval period, except that an additional instructor competency area may be added during the license period on submission by the instructor of evidence of competency in such additional competency area.

L. In the twenty-four months before application, each instructor original or renewal applicant, other than a panelist, guest speaker, attorney or out-of-state instructor, shall attend at least a three-hour professional seminar or workshop, approved by the department, emphasizing instruction methods, techniques and skills. At the discretion of the commissioner this requirement may be waived based on individual request review.

M. The course filing time frames prescribed in this section may be waived by the department for good cause shown.

N. Unless subject to a violation or suspected violation listed in subsection C of this section, the department's approval of a school, school official, instructor or course shall be processed in a time frame consistent with the time frames set forth in this section.

O. This section does not affect the department's ability to withdraw or deny certification or approval of real estate schools, education courses or real estate instructors for a violation of this chapter.

§ 32-2136 Broker management clinics

A. The department shall determine the instructor qualifications for teaching broker management clinics and the course content of broker management clinics for persons required to attend these clinics pursuant to subsection C of this section.

B. A broker management clinic shall consist of three courses of three hours each. The course topics shall be broker statute and rule requirements, including instruction on department audits, and the legal obligations of designated brokers, broker policy development and employee supervision and broker responsibilities and related topics. A broker management clinic shall address recordkeeping requirements, trust fund accounts, advertising and promotions, employment agreements, contracts, fiduciary duties, material disclosures, department investigations and risk management. A broker management clinic may be designed to address property management activities, a specialty field of real estate or sales activities, or any combination described in this subsection. If engaging in property management activities, a broker must complete a broker management clinic that is designed to teach proficiency in property management.

C. An applicant for an original real estate broker's license shall attend a broker management clinic before activating the license. A broker shall attend a broker management clinic before becoming a designated broker, unless the broker has attended a broker management clinic during the preceding twenty-three months. All designated brokers and associate brokers employed by a designated broker pursuant to section 32-2151.01, subsection G shall attend a broker management clinic once during each twenty-four months of licensure after their initial attendance.

D. Attendance at a broker management clinic constitutes three courses of three hours each for a total of nine credit hours of real estate oriented education pursuant to section 32-2130, subsection A.

§ 32-2137 Cancellation of license

On request of a licensee, the department may cancel that person's license if both of the following are true:

1. The licensee is not presently under investigation by the department.

2. The department has not commenced any disciplinary proceeding against the licensee.

Article 3 Regulation

§ 32-2151 Disposition of monies; trust fund accounts; deposit requirements; broker duties; violations

A. Unless otherwise provided in writing by all parties to a transaction, any licensed real estate broker who does not immediately place all monies entrusted to the broker, in the broker's capacity as a real estate broker, in a neutral escrow depository in this state shall on receipt place all such monies in a trust fund account in a federally insured or guaranteed account in a depository located in this state. The commissioner may adopt such rules as are necessary to provide for records to be maintained and the manner in which such trust fund account deposits may be made.

B. The following minimum requirements apply to each broker's trust fund account:

1. The broker shall make deposits to trust fund accounts by deposit slips. Receipts or other documentation shall identify each transaction, the date and the amount of each deposit and the names of parties involved in the transaction represented by the deposit, and monies shall be used only for the purpose for which the monies were deposited.

2. The broker shall retain a complete record of all monies received in connection with a real estate transaction electronically or in the main or branch office of the designated broker in this state or at an off-site storage location in this state if the broker provides prior written notification of the street address of the off-site storage location to the department. A broker's records shall be kept according to generally accepted accounting principles and shall include properly descriptive receipts and a disbursement journal and client ledger. The broker shall keep any computerized records in a manner allowing reconstruction in the event of destruction of electronic data.

3. On a monthly basis the broker must complete a three-way reconciliation between the trust fund account bank statements, client ledgers and trust fund account ledgers and provide an explanation for any variation.

C. A variation that is caused by any of the following acts or omissions is a violation of this chapter:

1. Failing to remove any interest that is earned on a trust fund account at least once every twelve months.

2. Allowing advance payment of monies belonging to others to be deposited in the broker's personal account or to be commingled with personal monies. For the purposes of this paragraph, it is not commingling if a broker deposits personal monies of not more than $5,000 to keep the account open or to avoid charges for an insufficient minimum balance.

3. Failing to identify monies as nonowner tenant monies in descriptive receipts.

4. Failing to maintain separate ledgers for each property.

5. Failing to regularly complete a three-way reconciliation as required by subsection B, paragraph 3 of this section.

6. Transferring monies between accounts that are owned by different persons unless each person consents in writing.

7. Failing to create checks and balances.

8. Failing to follow state or federal requirements.

D. An agreement to place monies entrusted to the broker in a depository that is located outside of this state is valid if all parties to the transaction agree in writing and either:

1. The monies are placed in a property management trust account established pursuant to section 32-2174 and:

(a) The account is federally insured or guaranteed.

(b) The property management agreement contains:

(i) Disclosure that the department's regulatory protections of the owner's monies may be significantly hampered.

(ii) Disclosure that the owner may not have access to or any control over the trust account, except to audit and review the status of the account.

(iii) An addendum that has the signed authorization by an appropriately empowered official of the depository in which the trust account is placed that the trust account and all related documentation will be open to examination by the department and the owner.

2. If the monies are not deposited in a property management trust account, the broker discloses to the parties to the transaction that potential risks may accrue as the result of depositing the monies in a depository outside this state.

E. This section does not allow a broker to commingle monies entrusted to the broker with the broker's own monies, unless the commissioner adopts rules that allow commingling.

§ 32-2151.01 Broker requirements; recordkeeping requirements; definition

A. Each licensed employing broker shall keep records of all real estate, cemetery, timeshare or membership camping transactions handled by or through the broker and shall keep employment records, including copies of employment status, for all current and former employees. The records required by this section shall include copies of earnest money receipts, confirming that the earnest money has been handled in accordance with the transaction, closing statements showing all receipts, disbursements and adjustments, sales contracts and, if applicable, copies of employment agreements. The records shall be open at all reasonable times for inspection by the commissioner or the commissioner's representatives. The records of each transaction and employment records shall be kept by the broker for a period of at least five years after the date of the termination of the transaction or employment. The records shall be kept in the employing broker's principal office or licensed branch office in this state or at an off-site storage location in this state if the broker provides prior written notification of the street address of the off-site storage location to the department.

B. Except as provided by section 32-2174, subsection C, a broker shall not grant any person authority to withdraw monies from the broker's trust fund account unless that person is a licensee under that broker's license.

C. A broker shall specifically state in the real estate purchase contract, lease agreement or receipt for earnest money the type of earnest money received in any real estate transaction, whether it is cash, a check, a promissory note or any other item of value.

D. All licensees shall promptly place all cash, checks or other items of value received as payment in connection with a real estate transaction in the care of the designated broker.

E. The broker shall maintain each real estate purchase contract or lease agreement and the transaction folder in which it is kept in a chronological log or other systematic manner that is easily accessible by the commissioner or the commissioner's representatives.

F. Sales transaction folders shall include:

1. Confirmation that the earnest monies or other monies handled by or through the broker were handled according to instructions given by or agreed to by the parties to the transaction.

2. A complete copy of the sales contract, any escrow account receipt, any closing or settlement statement and, if applicable, a copy of the escrow instructions, listing agreement, employment agreement and release of escrow monies.

G. The designated broker shall review each listing agreement, purchase or nonresidential lease agreement or similar instrument within ten business days after the date of execution by placing the broker's initials and the date of review on the instrument on the same page as the signatures of the parties. A designated broker may authorize in writing an associate broker who the designated broker employs to review and initial these instruments on the designated broker's behalf.

H. The broker shall retain all real estate purchase and nonresidential lease contracts and employment agreements, or copies of these documents, in the employing broker's principal office or licensed branch office or at an off-site storage location in this state if the broker provides prior written notification of the street address of the off-site storage location to the department.

I. The broker shall retain an original or a copy of any document evidencing a rejected offer to purchase real property as a matter of record for at least one year. In instances that result in binding contracts, the broker shall retain prior rejected offers for at least five years.

J. If real property in a development is sold or leased by a developer without the services of a listing or selling broker, the developer shall keep all records required by subsections A and C of this section.

K. For the purposes of this section, "business day" means a day that is not a Saturday, a Sunday or any other legal holiday in this state.

§ 32-2151.02 Real estate employment agreements; definition

A. All real estate employment agreements shall:

1. Be written in clear and unambiguous language.

2. Fully set forth all material terms, including the terms of broker compensation.

3. Have a definite duration or expiration date, showing dates of inception and expiration.

4. Be signed by all parties to the agreement.

B. An employing broker shall not assign a real estate employment agreement to another broker without the express written consent of all parties to the agreement at the time of the assignment.

C. A licensee shall not procure, or attempt to procure, a real estate employment agreement from a party who is already subject to an existing exclusive real estate employment agreement unless the licensee has received written acknowledgment from the party that the execution of additional real estate employment agreements could expose the party to liability for substantial additional commissions. Nothing in this subsection shall be construed to abrogate any civil liability of a licensee arising out of this conduct.

D. A real estate employment agreement is not required for a licensee to represent a party in a transaction.

E. For the purposes of this section, "real estate employment agreement" means a written agreement by which a real estate broker is entitled to compensation for services rendered pursuant to section 44-101, paragraph 7.

§ 32-2152 Action by broker or salesperson to collect compensation

A. An action for the collection of compensation earned may be maintained in the courts of the state by any broker or salesperson. To commence the action the complaint shall allege that the plaintiff was a qualified licensed broker or salesperson at the time the claim arose. Prior to hearing the action the court shall require the plaintiff to prove the alleged qualifications.

B. The commissioner shall not entertain complaints regarding purely civil disputes between licensees concerning the earning, splitting or nonpayment of compensation.

C. Nothing in this section shall be construed to permit the payment or receipt of compensation in violation of sections 32-2155 or 32-2163.

§ 32-2153 Grounds for denial, suspension or revocation of licenses; letters of concern; provisional license; retention of jurisdiction by commissioner; definitions

A. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter if it appears that the holder or applicant, within five years immediately preceding, in performing or attempting to perform any acts authorized by the license or by this chapter, has:

1. Pursued a course of misrepresentation or made false promises, either directly or through others, whether acting in the role of a licensee or a principal in a transaction.

2. Acted for more than one party in a transaction without the knowledge or written consent of all parties to the transaction.

3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.

4. Knowingly authorized, directed, connived at or aided in the publication, advertisement, distribution or circulation of any material false or misleading statement or representation concerning the licensee's business or any land, cemetery property, subdivision or membership campground or camping contract offered for sale in this or any other state.

5. Knowingly used the term "real estate broker", "cemetery broker" or "membership camping broker" without the legal right to do so.

6. Employed any unlicensed salesperson or unlicensed associate broker.

7. Accepted compensation as a licensee for performing any of the acts specified in this chapter from any person who is not authorized to provide compensation pursuant to section 32-2155.

8. Represented or attempted to represent a broker other than the broker to whom the salesperson or associate broker is licensed.

9. Failed, within a reasonable time, to account for or to remit any monies, to surrender to the rightful owner any documents or other valuable property that comes into the licensee's possession and that belongs to others, or to issue an appraisal report on real property or cemetery property in which the licensee has an interest, unless the nature and extent of the interest are fully disclosed in the report.

10. Paid or received any rebate, profit, compensation or commission in violation of this chapter.

11. Induced any party to a contract to break the contract for the purpose of substituting a new contract with the same or a different principal, if the substitution is motivated by the personal gain of the licensee.

12. Placed a sign on any property offering it for sale or for rent without the written authority of the owner or the owner's authorized agent.

13. Solicited, either directly or indirectly, prospects for the sale, lease or use of real property, cemetery property or membership camping contracts through a promotion of a speculative nature involving a game of chance or risk or through conducting lotteries or contests that are not specifically authorized under this chapter.

14. Failed to pay to the commissioner the renewal fee as specified in this chapter promptly and before the time specified.

15. Failed to keep an escrow or trust account or other record of monies deposited with the licensee relating to a real estate transaction.

16. Commingled the monies or other property of the licensee's principal or client with the licensee's own or converted these monies or property to the licensee or another.

17. Failed or refused on demand to produce any document, contract, book, record, information, compilation or report that is in the licensee's possession or that the licensee is required by law to maintain concerning any real estate, cemetery or membership camping business, services, activities or transactions involving or conducted by the licensee for inspection by the commissioner or the commissioner's representative.

18. Failed to maintain a complete record of each transaction that comes within this chapter.

19. Violated the federal fair housing law, the Arizona civil rights law or any local ordinance of a similar nature.

20. Tendered to a buyer a wood infestation report in connection with the transfer of residential real property or an interest in residential real property knowing that wood infestation exists or that the wood infestation report was inaccurate or false as of the date of the tender or that an inspection was not done in conjunction with the preparation of the wood infestation report.

21. As a licensed broker, failed to exercise reasonable supervision over the activities of salespersons, associate brokers or others under the broker's employ or failed to exercise reasonable supervision and control over the activities for which a license is required of a corporation, limited liability company or partnership on behalf of which the broker acts as designated broker under section 32-2125.

22. Demonstrated negligence in performing any act for which a license is required.

23. Sold or leased a property to a buyer or lessee that was not the property represented to the buyer or lessee.

24. Violated any condition or term of a commissioner's order.

25. Signed the name of another person on any document or form without the express written consent of the person.

26. As a licensed school, failed to exercise reasonable supervision over the activities for which a license is required for an owner, director, administrator or instructor in the school's employ.

B. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter if it appears that the holder or applicant has:

1. Procured or attempted to procure a license under this chapter for the holder or applicant or another by fraud, misrepresentation or deceit or by filing an original or renewal application that is false or misleading.

2. Been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense.

3. Made any substantial misrepresentation.

4. Made any false promises of a character likely to influence, persuade or induce.

5. Been guilty of any conduct, whether of the same or a different character than specified in this section, that constitutes fraud or dishonest dealings.

6. Engaged in the business of a real estate broker, cemetery broker or membership camping broker or real estate salesperson, cemetery salesperson or membership camping salesperson without holding a license as prescribed in this chapter.

7. Demonstrated incompetence to perform any duty or requirement of a licensee under or arising from this chapter. For the purposes of this paragraph, "incompetence" means a lack of basic knowledge or skill appropriate to the type of license the person holds or a failure to appreciate the probable consequences of the licensee's action or inaction.

8. Violated the terms of any criminal or administrative order, decree or sentence.

9. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.

10. Failed to respond in the course of an investigation or audit by providing documents or written statements.

C. A judgment based on a court's finding or stipulation of fraud by a licensee following a trial on the merits or a criminal conviction of a licensee that results in a payment from the real estate recovery fund is prima facie evidence of a violation and grounds for discipline under this section.

D. The commissioner may deny, suspend or revoke the issuance of a license on application by a corporation, a limited liability company or a partnership if it appears that an owner, officer, director, member, manager, partner, stockholder owning ten percent or more of the stock in the corporation or limited liability company or person exercising control of the entity is a current or former licensee whose license as a broker or a salesperson has been denied, suspended or revoked.

E. The lapsing or suspension of a license by operation of law or by order or decision of the commissioner or a court of law or the voluntary surrender of a license by a licensee does not deprive the commissioner of jurisdiction to do any of the following:

1. Proceed with any investigation of or action or disciplinary proceeding against the licensee.

2. Render a decision suspending or revoking the license or denying the renewal or right of renewal of the license.

3. Assess a civil penalty pursuant to section 32-2160.01.

F. For the purposes of this section:

1. "Letter of concern" means an advisory letter to notify a licensee that, while the conduct or evidence does not warrant disciplinary action, the commissioner believes that the licensee should modify or eliminate certain practices and that continuation of the activities may result in disciplinary action against the licensee.

2. "Provisional license" means a license that the department issues and that allows a licensee to practice subject to either a consent order as prescribed in section 32-2153.01 or the commissioner's terms, conditions and restrictions.

§ 32-2153.01 Consent order; terms

In addition to any other authority granted to the commissioner in this chapter to issue orders, the commissioner may issue a consent order on the agreement of both parties to an appealable agency action or a contested case. The order shall include terms that the parties agree on and that the commissioner, in the commissioner's discretion, believes are appropriate.

§ 32-2154 Cease and desist orders; hearing

A. If it appears to the commissioner that any person has engaged, is engaging or is preparing to engage in any act, practice or transaction that constitutes a violation of this chapter or any rule adopted or order issued by the commissioner, the commissioner may issue an order directing any person to cease and desist from engaging in the act, practice or transaction or doing any act in furtherance of the act, practice or transaction, to make restitution or to take appropriate affirmative action, within a reasonable period of time as prescribed by the commissioner, to correct the conditions resulting from the act, practice or transaction.

B. A person aggrieved by a cease and desist order issued by the commissioner pursuant to this section may request a hearing pursuant to title 41, chapter 6, article 10 and the commissioner may issue the order or orders as the commissioner deems necessary to protect the public interest. The commissioner may also bring an action in any court of competent jurisdiction against the person to enjoin the person from continuing in violation of this chapter. These proceedings shall be promptly instituted and determined.

§ 32-2155 Restriction on employment or compensation of person as broker or salesperson

A. A broker shall employ and pay only active licensees, and a licensee shall accept employment and compensation as a licensee only from either or both of the following:

1. The legally licensed broker to whom the licensee is licensed.

2. An employer other than the legally licensed broker as described in paragraph 1 of this subsection if the all of the following apply:

(a) The employer holds a license.

(b) The licensee is the employer's employee and receives a federal form W-2 wage and tax statement.

(c) The employer has the same employing broker as the licensee.

(d) The employer obtains written permission from the employing broker to pay the licensee.

B. If the licensee is licensed through a professional corporation or a professional limited liability company, the employing broker may pay and the licensee may receive compensation only through the licensed professional corporation of which the licensee is an officer and shareholder or the licensed professional limited liability company of which the licensee is a member or manager.

C. It is unlawful for a person, firm or corporation, whether an obligor, escrow holder or otherwise, to pay or deliver to anyone compensation for performing any of the acts specified by this chapter, as a broker, who is not licensed at the time the service is rendered. An identification card or certificate of license issued by the state real estate department showing that the person, firm or corporation holds a license for the year in which the payment is made or earned is sufficient proof to relieve from any penalty for a violation of this section the obligor, escrow holder or other person who relied in good faith on the card or certificate.

D. A real estate broker or real estate salesperson shall not collect compensation for rendering services in negotiating loans secured by real property unless all of the following apply:

1. The broker or salesperson is licensed pursuant to title 6, chapter 9 or is an employee, officer or partner of a corporation or partnership licensed pursuant to title 6, chapter 9.

2. The broker or salesperson has disclosed to the person from whom the compensation is collected that the broker or salesperson is receiving compensation both for real estate brokerage, when applicable, and for mortgage broker services.

3. The compensation does not violate any other state or federal law.

E. Notwithstanding subsection A or B of this section, brokers licensed under this chapter may employ residential leasing agents or managers of residential rental properties, as prescribed by section 32-2121, subsection A, paragraph 6. The exemption of residential leasing agents or managers of residential rental property under article 2 of this chapter does not exempt the designated broker from the responsibility to exercise reasonable supervision over these leasing agents or managers.

§ 32-2156 Real estate sales and leases; disclosure

A. No criminal, civil or administrative action may be brought against a transferor or lessor of real property or a licensee for failing to disclose that the property being transferred or leased is or has been:

1. The site of a natural death, suicide or homicide or any other crime classified as a felony.

2. Owned or occupied by a person exposed to the human immunodeficiency virus or diagnosed as having the acquired immune deficiency syndrome or any other disease that is not known to be transmitted through common occupancy of real estate.

3. Located in the vicinity of a sex offender.

B. Failing to disclose any fact or suspicion as set forth in subsection A shall not be grounds for termination or rescission of any transaction in which real property has been or will be transferred or leased.

§ 32-2157 Written notice of charges; summary suspension; hearing; voluntary surrender of license

A. Except as provided in subsections B and C of this section, before suspending, revoking or denying the renewal or the right of renewal of any license, or issuing any order prohibiting the sale or lease of property or the sale of cemetery lots or membership camping contracts as provided by this chapter, the commissioner shall present the licensee, owner, including the current owner of the property, operator, agent or developer with written notice of the charges filed against the person, or reasons for prohibiting the sale or lease, and shall afford the person an opportunity for a hearing pursuant to title 41, chapter 6, article 10. Within twenty days after service of a notice of hearing, the respondent shall appear by filing a written answer to the complaint. A licensee against whom the department has commenced a disciplinary proceeding under this chapter may voluntarily surrender to the department the license if the surrender of the license occurs not less than ten days prior to a hearing under this section. After the acceptance of a voluntary surrender of a license under this section the department shall not thereafter issue a license under this chapter to the licensee.

B. If the commissioner finds that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in the commissioner's order, summary suspension of a license or sales may be ordered. Grounds for issuance of an order of summary suspension include the violation of any of the provisions of section 32-2153 and the termination of a license pursuant to section 32-2188, subsection I. A licensee, owner, including the current owner of the property, operator, agent or developer may request a hearing pursuant to title 41, chapter 6, article 10. A summary suspension shall be deemed to be final if a request for a hearing is not received within thirty days as provided by section 41-1092.03.

C. The department may issue a summary suspension when the department receives notice that a person licensed pursuant to this chapter has been convicted of a felony offense and is currently incarcerated for the conviction, paroled or under the supervision of a parole or community supervision officer or is on probation as a result of the conviction. This subsection does not limit the commissioner's authority to seek revocation of a license or other disciplinary action pursuant to this chapter.

§ 32-2158 Hearing; witnesses; deposition; service of process

A. Any party to a hearing shall have the right to the attendance of witnesses in the party's behalf, in person or by deposition, upon making a request therefor to the commissioner and designating the person or persons requested to be subpoenaed. For the purpose of investigation or hearing the commissioner shall have the powers vested in public officers by section 12-2212.

B. Process issued by the commissioner may be served by any person authorized to serve process of courts of record or by any person designated for that purpose by the commissioner. The person serving process shall receive compensation allowed by the commissioner, not to exceed the fees prescribed by law for similar service. Any witness who appears by order of the commissioner shall receive the same fees and mileage allowed by law to a witness in civil cases, which shall be paid by the party at whose request the witness is subpoenaed. Fees for serving process and of witnesses subpoenaed by the commissioner not upon the request of any other person shall be paid as other expenses of the department are paid.

§ 32-2159 Judicial review; costs; transcript

A. Except as provided in section 41-1092.08, subsection H, a final decision of the commissioner may be appealed to the superior court in Maricopa county pursuant to title 12, chapter 7, article 6.

B. If the superior court declares an appealing party indigent, on appeal the department shall pay the costs of the reporter's transcript of proceedings and shall produce a certified copy of all documents and evidence in the administrative record at no charge.

§ 32-2160 Filing of complaint by commissioner; prosecution

A. The commissioner may file a complaint for a violation of this chapter before a court of competent jurisdiction and may in person or by his deputies, assistants or counsel assist in the prosecution of the complaint. The county attorney of any county in which a violation occurs shall, upon the written request of the commissioner or the attorney general, prosecute the violation.

B. In addition to all other remedies, when it appears to the commissioner either upon complaint or otherwise that any person, firm, partnership, corporation, association or other organization, or a combination of any of them, has engaged or is engaging in any act, practice or transaction which constitutes a violation of this chapter or of any rule or order of the commissioner, the commissioner may, either through the attorney general or through the county attorney of any county in which the act, practice or transaction is alleged to have been committed, apply to the superior court of that county for an injunction restraining such person, firm, partnership, corporation, association or other organization from engaging in such act, practice or transaction, or doing any act in furtherance thereof, and, upon a proper showing, a temporary restraining order, a preliminary injunction or a permanent injunction shall be granted without bond. Process in such action may be served upon the defendant in any county of this state where such defendant transacts business or is found or on the statutory agent in the case of a corporation.

C. Nothing in subsection B shall give the department jurisdiction over any landlord and tenant disputes or federal or state fair housing violations or authorize the commissioner to seek sanctions under this chapter or any rule or order of the commissioner relating to these matters.

§ 32-2160.01 Civil penalties

A. Any licensee who is subject to the jurisdiction of the department and who has violated any provision of this chapter or any rule or order adopted or issued by the commissioner, who has deviated substantially from the provisions of a public report or who has engaged in any unlawful practices defined in section 44-1522 with respect to the sale or lease of either subdivided lands or unsubdivided lands may be assessed a civil penalty by the commissioner, after a hearing, in an amount not to exceed one thousand dollars for each infraction.

B. Actions to recover penalties assessed pursuant to this chapter shall be brought by the attorney general in the name of the state in the superior court in the county in which the violation occurred or in a county in which the commissioner maintains an office. When the commissioner has revoked a license or withdrawn certification or approval of a school, educational course or real estate instructor and assessed civil penalties that remain unpaid, if judicial review has not been sought under title 12, chapter 7, article 6, a certified copy of any such commissioner's order requiring the payment of civil penalties may be filed in the office of the clerk of the superior court. The clerk shall treat the commissioner's order in the same manner as a judgment of the superior court. A commissioner's order so filed has the same effect as a judgment of the superior court and may be recorded, enforced or satisfied in like manner. No filing fee is required under this section.

§ 32-2161 False statements or publications concerning land, subdivision or membership camping contract for sale or lease; classification; definition

A. Every person who knowingly authorizes or directs any publication or any false statement or representation concerning any land, subdivision or membership camping contract offered for sale or lease, and every person who, with knowledge that any advertisement, pamphlet, prospectus, or letter concerning the land, subdivision or membership camping contract contains any written statement that is false or fraudulent, issues, circulates, publishes or distributes it or causes it to be issued, circulated, published or distributed, or who in any respect knowingly violates or fails to comply with any order, permit, decision, demand or requirement of the commissioner under the provisions of this chapter, is guilty of a class 6 felony and, if a licensee, shall be tried before the commissioner for suspension or revocation of his license.

B. For purposes of this section, "knowingly" or "with knowledge" includes, but is not limited to, engaging in any conduct prohibited in subsection A if such person knew or should have known of the falsity of any statement or representation.

§ 32-2162 Sale of cemetery property for speculation unlawful

It is unlawful for any person to sell or offer for sale cemetery property under any promise that the cemetery property sold or offered for sale may be resold at a profit. The conveyance of cemetery property pursuant to a sale in violation of this section is void.

§ 32-2163 Unlawful acts; out-of-state broker; cooperation agreement

A. It is unlawful for any licensed broker in this state to employ or compensate, directly or indirectly, any person for performing any of the acts within the scope of this chapter if the person is not also a licensed broker in this state, or a salesperson licensed under the broker employing or compensating the salesperson, except that a licensed broker in this state may pay compensation to and receive compensation from a broker who is lawfully operating in another state.

B. Notwithstanding that pursuant to subsection A of this section a licensed broker in this state may pay to and receive compensation from an out-of-state broker, this authority does not allow an out-of-state broker to conduct activity in this state that would otherwise require a broker's license issued by the department.

C. A licensed broker in this state may cooperate with an out-of-state broker who would otherwise require licensure in this state if:

1. The licensed broker and the out-of-state broker enter into a written cooperation agreement before the out-of-state broker conducts any activity otherwise requiring a broker's license pursuant to this chapter. The cooperation agreement shall include the following:

(a) A list of the real estate activities to be conducted by the out-of-state broker.

(b) A statement that the out-of-state broker agrees to fully comply with the laws of this state and submit to the regulatory jurisdiction of the department for activities subject to real estate broker licensure pursuant to this chapter.

(c) A statement that the licensed broker in this state understands and accepts responsibility for the acts of the out-of-state broker.

2. All negotiations in this state or with people who own property in this state are conducted through the licensed broker in this state.

3. The licensed broker in this state assumes all responsibility for the acts of the out-of-state broker.

4. All principal funds handled by either the licensed broker in this state or the out-of-state broker are subject to the deposit and handling requirements of section 32-2151.

D. The offering of real estate brokerage services specified by section 32-2101, paragraph 51 for compensation or any other thing of value pertaining to real property located in this state through an internet website constitutes activity that requires a broker's license issued by the department.

E. This section does not allow an out-of-state broker who is not licensed in this state to list, market or advertise in this state real property located in this state for sale, lease or exchange.

F. Signs shall not be placed on real property in this state by an out-of-state broker. An out-of-state broker shall not use a cooperation agreement as authority to sell, lease, rent, exchange or attempt to sell, lease, rent or exchange real property to a resident of this state.

§ 32-2164 Unlawful subdivision lot sales

It is unlawful for a licensed real estate broker or salesperson to assist a subdivider or agent of such subdivider in the offer, sale or lease of a subdivision lot or parcel in violation of any provision of this chapter or any rule adopted or order issued by the commissioner if the licensee knew or should have known of the violation.

§ 32-2165 Unlicensed activities; violation; classification

A. A person who acts as a broker or salesperson within the meaning of this chapter, or who advertises in a manner that indicates that the person is licensed as a broker or salesperson, without being licensed as prescribed by this chapter is guilty of a class 6 felony.

B. A person who performs acts that require a license under this chapter, other than a broker's or salesperson's license, without being licensed as prescribed by this chapter is guilty of a class 5 felony.

C. The penalties prescribed by this section do not apply to:

1. A broker or salesperson within a year of the expiration of the broker's or salesperson's license, if the failure to timely renew the license was due to unintentional neglect by the licensee or administrative untimeliness by the department.

2. The activities of a licensee, while acting in a capacity for which the person's license was issued, that otherwise violate any provision of this chapter.

3. Any person who, on discovering that a license is required to carry on the person's present or planned activities, and before the issuance of a cease and desist order pursuant to section 32-2154, notifies the department of the person's intent to immediately comply with this chapter, applies for the required license and ceases the prohibited activities pending issuance of a license. Nothing in this paragraph shall be construed to lessen or reduce the qualifications otherwise required of license applicants under this chapter or to diminish the authority of the department to deny a license to a person who does not meet all of the requirements for licensure.

§ 32-2166 Activities while incarcerated; violation; classification

A. While incarcerated a person who is licensed pursuant to this chapter shall not perform acts that require a license under this chapter.

B. A person who violates this section is guilty of a class 6 felony.

Article 3.1 Property Management

§ 32-2171 Definitions

In this article, unless the context otherwise requires:

1. "Property management firm" means any corporation, partnership or limited liability company licensed pursuant to section 32-2125, subsection A or a designated broker that by written agreement, manages rental property or properties for compensation.

2. "Rental agreement" means a lease or leasing agreement.

§ 32-2172 Scope of article

This article supersedes all provisions of law and rules that relate to property management.

§ 32-2173 Property management agreements; contents, termination

A. A property management firm shall write property management agreements in clear, unambiguous language, and the property management agreements:

1. Shall:

(a) State all material terms and conditions of the property management firm's services, obligations, duties and responsibilities to the property owner.

(b) Be signed by the property owner or his agent and the property management firm's designated broker or the broker's authorized real estate licensee.

(c) Specify a beginning and an ending date.

(d) Contain cancellation provisions that are agreeable to both parties.

(e) Provide for the manner of disposition of all monies collected by the property management firm, including any tenant deposits.

(f) Specify the type and frequency of status reports to the owner.

(g) State the amount and purpose of monies the property management firm holds as an operating reserve for emergency and other purposes.

(h) Provide for the disposition and allocation of interest earned on trust account monies.

(i) State the terms and conditions of compensation the property owner pays for services pursuant to the property management agreement.

(j) Not be assigned to another licensee or licensed entity without the express written consent of the property owner.

2. May:

(a) Contain an automatic renewal provision, if the property management firm sends the owner a reminder notice at least thirty days before the renewal date. The notice does not negate any other cancellation term otherwise agreed to.

(b) Provide for reasonable liquidated damages or cancellation fees for early termination of the agreement.

(c) Allow the property management firm's broker to authorize a licensed or unlicensed person in the direct employment of the broker, pursuant to section 32-2174, subsection C, to transfer monies from or to be a signatory on a property management trust account to which the property management firm deposits the owner's monies.

(d) Require more than one signature on checks written from a property management account.

(e) Contain any other provisions that are agreed to between the property management firm and the owner and that are not in conflict with the requirements of this chapter.

B. Immediately on termination of a property management agreement, the property management firm shall provide the owner with:

1. All originals or other copies of all rental agreements or related documents in the property management firm's possession for current and previous tenants. These documents shall include any applications, property inventories, leases, pet permits, default notices, lease amendments or addenda in the property management firm's possession. The broker is not required to keep copies of residential rental lease agreements or related rental lease documents after termination of the property management agreement.

2. All building plans, environmental studies, conditions, covenants and restrictions, inspection reports, contracts, keys, warranties, personal property or other documents in the possession of the property management firm.

C. On termination of the property management agreement the property management firm shall provide the owner with a final accounting of the property's financial status that includes at a minimum:

1. Within five days, a list of all tenant security obligations.

2. Within thirty-five days, reimbursement for all monies remaining in the property accounts maintained by the property management firm, except for monies needed for unpaid obligations incurred during the term of the property management agreement.

3. Within seventy-five days, a final accounts receivable and payable list.

4. Within seventy-five days, a final bank account reconciliation.

D. If there is an on-site management office and any of the records or documents described in subsection B of this section are located on site, the property management firm may leave the items there for the benefit of the owner on termination of the property management agreement. The property management firm shall inform the owner in writing immediately as to the location of these records.

§ 32-2174 Property management accounts; trust accounts; signatories

A. All property management accounts shall be designated as trust accounts on the broker's records.

B. A broker's trust account is required for all of the owner's monies, except if the owner directs the broker to deposit the monies directly into the owner's account. The broker shall not have access to the owner's account. Trust accounts may be interest bearing.

C. The designated broker for a property management firm may authorize either a licensee or an unlicensed natural person in the direct employ of the broker to transfer monies or to be a signatory on the property management firm's trust accounts. If the person who is designated to sign on behalf of the designated property management broker is an unlicensed person, that person shall be a bona fide officer, member, principal or employee of the property management firm. The broker may require dual signatures on checks and may use a facsimile signature according to the broker's business policies and procedures. The designation of a licensed or unlicensed person to transfer monies or to be a signatory on trust accounts does not lessen the broker's responsibility or liability for any monies handled.

D. Within three banking days after receiving monies that are not subject to dispute or contingency, the property management firm shall deposit the monies in either the owner's direct account or the property management firm's trust account for the benefit of the owner. A property management firm may remit an owner's monies under its control to or for the owner by any lawful means available.

E. Each rental agreement executed by a property manager shall include a provision that clearly states the disposition of any tenant deposits.

§ 32-2175 Property management records; requirements; audits

A. Property management firms shall keep a residential rental agreement, including any lease amendments and addenda, and related residential rental agreement documents for one year after the expiration of the rental agreement or until the rental agreement and related documents are given to the owner at the termination of any property management agreement. For the purposes of this subsection, related documents may include copies of any of the following:

1. Rental applications with tenant-identifying information.

2. Move-in forms.

3. Default notices.

B. Property management firms shall keep records of all finder fees that are paid to tenants for three years after the payment is made or until the records are given to the owner at the termination of the property management agreement.

C. Property management firms shall keep all financial records pertaining to clients for at least three years from the date each document was executed, including bank statements, canceled checks or bank generated check images, deposit slips, bank receipts, receipts and disbursement journals, owner statements, client ledgers and applicable bills, invoices and statements.

D. Only the designated broker or the broker's authorized real estate licensee, on behalf of the broker, may sign nonresidential rental agreements. The broker shall execute in writing and shall file any delegation of authority in the broker's employee file. Fully executed residential lease agreements are not required to be reviewed and initialed.

E. The property management firms shall consecutively number or file all signed property management agreements in compliance with a system that is orderly, easily accessible by the commissioner or the commissioner's representative and consistent with generally accepted professional standards of the industry for that type of real estate.

F. Property management firms shall maintain each nonresidential real estate lease agreement and the transaction folder in which it is kept in a chronological log or other systematic manner that is easily accessible by the commissioner or the commissioner's representatives. For nonresidential lease transactions, transaction folders shall contain:

1. Confirmation that the deposits or other monies that were handled by or through the broker were handled according to instructions given by or agreed on by the parties to the transaction.

2. A complete copy of the nonresidential lease or rental agreement.

3. If applicable, a copy of the listing agreement.

G. Property management firms shall number on-site residential rental transaction folders according to dwelling unit number or other systematic manner that is easily accessible by the commissioner or the commissioner's representative. A broker is not required to maintain duplicate residential rental transaction folders.

H. All records required under this section shall be kept at the broker's main office or branch office, electronically or at an off-site storage location in this state if the broker provides to the department prior written notification and a street address of the off-site storage location. Trust account records shall be kept pursuant to section 32-2151. For the purposes of this subsection, "off-site storage location" includes a multifamily leasing office.

I. On request by the commissioner or the commissioner's representatives for routine audit purposes the broker shall make available within a reasonable amount of time all records relative to property management accounts, including lease agreements, lease related documents and trust account records. The department is limited to auditing those areas that are related to the business activities of a broker and that have a material bearing on the accuracy of the audit. This subsection does not limit the immediacy or scope of an audit if a violation of real estate statutes or rules is suspected.

§ 32-2176 Payment of finder fees to apartment tenants; limits; prohibited activities; civil penalty; definitions

A. Notwithstanding sections 32-2155, 32-2163 and 32-2165 or any other provision of this chapter, a property management firm or a property owner may:

1. Pay a finder fee to an unlicensed person who is a tenant in an apartment complex managed by the firm or owned by the owner.

2. Authorize a residential leasing agent or manager to deliver a finder fee to an unlicensed person who is a tenant in an apartment complex managed by the residential leasing agent or manager. A residential leasing agent or manager may not receive a finder fee. This prohibition does not affect the ability of a residential leasing agent or manager to receive a bonus pursuant to section 32-2121, subsection A, paragraph 6.

B. A finder fee paid pursuant to this section shall be a credit toward or reduction in the tenant's monthly rent. A tenant may receive multiple finder fees.

C. A tenant shall limit the tenant's activities pursuant to this section to referring prospective lessees to the owner or the owner's agent and shall not do any of the following:

1. Show a residential dwelling unit to a prospective lessee.

2. Discuss terms or conditions of leasing a dwelling unit with a prospective lessee.

3. Participate in the negotiation of the leasing of a dwelling unit.

D. This section does not allow an unlicensed person to advertise or otherwise promote the person's services in procuring or assisting to procure prospective lessors or tenants of apartment units.

E. For a licensee who pays a finder fee in violation of this section, for each violation the department may suspend or revoke the licensee's license or impose a civil penalty pursuant to section 32-2153.

F. For the purposes of this section:

1. "Finder fee" means a fee paid to a person for introducing or arranging an introduction between the parties to a transaction involving the rental of an apartment unit.

2. "Property owner" means a person who is exempt from the licensing requirements of this chapter pursuant to section 32-2121, subsection A, paragraph 1.

3. "Residential leasing agent or manager" has the same meaning prescribed in section 32-2121, subsection A, paragraph 6.

Article 4 Sale of Subdivided Lands

§ 32-2181 Notice to commissioner of intention to subdivide lands; unlawful acting in concert; exceptions; deed restrictions; definition

A. Before offering subdivided lands for sale or lease, the subdivider shall notify the commissioner in writing of the subdivider's intention. The notice shall contain:

1. The name and address of the owner. If the holder of any ownership interest in the land is other than an individual, such as a corporation, partnership or trust, a statement naming the type of legal entity and listing the interest and the extent of any interest of each principal in the entity. For the purposes of this section, "principal" means any person or entity having a ten per cent or more financial interest or, if the legal entity is a trust, each beneficiary of the trust holding a ten per cent or more beneficial interest.

2. The name and address of the subdivider.

3. The legal description and area of the land.

4. A true statement of the condition of the title to the land, including all encumbrances on the land, and a statement of the provisions agreed to by the holder of any blanket encumbrance enabling a purchaser to acquire title to a lot or parcel free of the lien of the blanket encumbrance on completion of all payments and performance of all of the terms and provisions required to be made or performed by the purchaser under the real estate sales contract by which the purchaser has acquired the lot or parcel. The subdivider shall file copies of documents acceptable to the department containing these provisions with the commissioner before the sale of any subdivision lot or parcel subject to a blanket encumbrance.

5. The terms and conditions on which it is intended to dispose of the land, together with copies of any real estate sales contract, conveyance, lease, assignment or other instrument intended to be used, and any other information the owner or the owner's agent or subdivider desires to present.

6. A map of the subdivision that has been filed in the office of the county recorder in the county in which the subdivision is located.

7. A brief but comprehensive statement describing the land on and the locality in which the subdivision is located.

8. A statement of the provisions that have been made for permanent access and provisions, if any, for health department approved sewage and solid waste collection and disposal and public utilities in the proposed subdivision, including water, electricity, gas and telephone facilities.

9. A statement as to the location of the nearest public common and high schools available for the attendance of school age pupils residing on the subdivision property.

10. A statement of the use or uses for which the proposed subdivision will be offered.

11. A statement of the provisions, if any, limiting the use or occupancy of the parcels in the subdivision, together with copies of any restrictive covenants affecting all or part of the subdivision.

12. The name and business address of the principal broker selling or leasing, within this state, lots or parcels in the subdivision.

13. A true statement of the approximate amount of indebtedness that is a lien on the subdivision or any part of the subdivision and that was incurred to pay for the construction of any on-site or off-site improvement, or any community or recreational facility.

14. A true statement or reasonable estimate, if applicable, of the amount of any indebtedness that has been or is proposed to be incurred by an existing or proposed special district, entity, taxing area or assessment district, within the boundaries of which the subdivision, or any part of the subdivision, is located, and that is to pay for the construction or installation of any improvement or to furnish community or recreational facilities to the subdivision, and which amounts are to be obtained by ad valorem tax or assessment, or by a special assessment or tax upon the subdivision or any part of the subdivision.

15. A true statement as to the approximate amount of annual taxes, special assessments or fees to be paid by the buyer for the proposed annual maintenance of common facilities in the subdivision.

16. A statement of the provisions for easements for permanent access for irrigation water where applicable.

17. A true statement of assurances for the completion of off-site improvements, such as roads, utilities, community or recreational facilities and other improvements to be included in the offering or represented as being in the offering, and approval of the offering by the political subdivision with authority. This statement shall include a trust agreement or any other evidence of assurances for delivery of the improvements and a statement of the provisions, if any, for the continued maintenance of the improvements.

18. A true statement of the nature of any improvements to be installed by the subdivider, the estimated schedule for completion and the estimated costs related to the improvements that will be borne by purchasers of lots in the subdivision.

19. A true statement of the availability of sewage disposal facilities and other public utilities, including water, electricity, gas and telephone facilities in the subdivision, the estimated schedule for their installation, and the estimated costs related to the facilities and utilities that will be borne by purchasers of lots in the subdivision.

20. A true statement as to whether all or any portion of the subdivision is located in an open range or area in which livestock may roam at large under the laws of this state and what provisions, if any, have been made for the fencing of the subdivision to preclude livestock from roaming within the subdivided lands.

21. If the subdivider is a subsidiary corporation, a true statement identifying the parent corporation and any of the following in which the parent or any of its subsidiaries is or has been involved within the past five years:

(a) Any subdivision in this state.

(b) Any subdivision, wherever located, for which registration is required pursuant to the federal interstate land sales full disclosure act.

(c) Any subdivision, wherever located, for which registration would have been required pursuant to the federal interstate land sales full disclosure act but for the exemption for subdivisions whose lots are all twenty acres or more in size.

22. A true statement identifying all other subdivisions, designated in paragraph 21 of this subsection, in which any of the following is or, within the last five years, has been directly or indirectly involved:

(a) The holder of any ownership interest in the land.

(b) The subdivider.

(c) Any principal or officer in the holder or subdivider.

23. A true statement as to whether all or any portion of the subdivision is located in territory in the vicinity of a military airport or ancillary military facility as defined in section 28-8461, in territory in the vicinity of a public airport as defined in section 28-8486, on or after July 1, 2001, in a high noise or accident potential zone as defined in section 28-8461 or on or after July 1 of the year in which the subdivision becomes located in a high noise or accident potential zone. The statement required pursuant to this paragraph does not require the amendment or refiling of any notice filed before July 1, 2001 or before July 1 of the year in which the subdivision becomes located in a high noise or accident potential zone.

24. If the subdivision is a conversion from multifamily rental to condominiums as defined in section 33-1202, a true statement as to the following:

(a) That the property is a conversion from multifamily rental to condominiums.

(b) The date original construction was completed.

25. Other information and documents and certifications as the commissioner may reasonably require provided that the subdivider shall not be required to disclose any critical infrastructure information as defined in section 41-1801 or any information contained in a report issued pursuant to section 41-4273.

B. The commissioner, on application, may grant a subdivider of lots or parcels within a subdivision for which a public report was previously issued by the commissioner an exemption from all or part of the notification requirements of subsection A of this section. The subdivider shall file a statement with the commissioner indicating the change of ownership in the lots or parcels together with any material changes occurring subsequent to the original approval of the subdivision within which the lots or parcels are located. The statement shall further refer to the original approval by the commissioner.

C. If the subdivision is within an active management area, as defined in section 45-402, the subdivider shall accompany the notice with a certificate of assured water supply issued by the director of water resources along with proof that all applicable fees have been paid pursuant to sections 48-3772 and 48-3774.01, unless the subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an assured water supply by the director of water resources pursuant to section 45-576 or is exempt from the requirement pursuant to section 45-576. If the subdivider has submitted a certificate of assured water supply to a city, town or county prior to approval of the plat by the city, town or county and this has been noted on the face of the plat, the submission constitutes compliance with this subsection if the subdivider provides proof to the commissioner that all applicable fees have been paid pursuant to sections 48-3772 and 48-3774.01.

D. It is unlawful for a person or group of persons acting in concert to attempt to avoid this article by acting in concert to divide a parcel of land or sell subdivision lots by using a series of owners or conveyances or by any other method that ultimately results in the division of the lands into a subdivision or the sale of subdivided land. The plan or offering is subject to this article. Unlawful acting in concert pursuant to this subsection with respect to the sale or lease of subdivision lots requires proof that the real estate licensee or other licensed professional knew or with the exercise of reasonable diligence should have known that property which the licensee listed or for which the licensee acted in any capacity as agent was subdivided land subject to this article. A familial relationship alone is not sufficient to constitute unlawful acting in concert.

E. A creation of six or more lots, parcels or fractional interests in improved or unimproved land, lots or parcels of any size is subject to this article except when:

1. Each of the lots, parcels or fractional interests represents, on a partition basis, thirty-six acres or more in area of land located in this state, including to the centerline of dedicated roads or easements, if any, contiguous to the land in which the interests are held.

2. The lots, parcels or fractional interests are the result of a foreclosure sale, the exercise by a trustee under a deed of trust of a power of sale or the grant of a deed in lieu of foreclosure. This paragraph does not allow circumvention of the requirements of this article.

3. The lots, parcels or fractional interests are created by a valid order or decree of a court pursuant to and through compliance with title 12, chapter 8, article 7 or by operation of law. This paragraph does not allow circumvention of the requirements of this article.

4. The lots, parcels or fractional interests consist of interests in any oil, gas or mineral lease, permit, claim or right therein and such interests are regulated as securities by the United States or by this state.

5. The lots, parcels or fractional interests are registered as securities under the laws of the United States or the laws of this state or are exempt transactions under section 44-1844, 44-1845 or 44-1846.

6. The commissioner by special order exempts offerings or dispositions of any lots, parcels or fractional interests from compliance with this article on written petition and on a showing satisfactory to the commissioner that compliance is not essential to the public interest or for the protection of buyers.

7. A sale or lease of a lot, parcel or fractional interest occurs ten or more years after the sale or lease of another lot, parcel or fractional interest and the other lot, parcel or fractional interest is not subject to this article and is treated as an independent parcel unless, upon investigation by the commissioner, there is evidence of intent to subdivide.

F. In areas outside of active management areas established pursuant to title 45, chapter 2, article 2:

1. If the subdivision is located in a county that has adopted the provision authorized by section 11-823, subsection A, or in a city or town that has enacted an ordinance pursuant to section 9-463.01, subsection O, the subdivider shall accompany the notice with a report issued by the director of water resources pursuant to section 45-108 stating that the subdivision has an adequate water supply, unless one of the following applies:

(a) The subdivider submitted the report to a city, town or county before approval of the plat by the city, town or county and this has been noted on the face of the plat.

(b) The subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an adequate water supply by the director of water resources pursuant to section 45-108.

(c) The plat was approved pursuant to an exemption authorized by section 9-463.01, subsection K, pursuant to an exemption authorized by section 11-823, subsection B, paragraph 1, pursuant to an exemption granted by the director of water resources under section 45-108.02 and the exemption has not expired or pursuant to an exemption granted by the director under section 45-108.03. If the plat was approved pursuant to an authorized exemption, the state real estate commissioner shall require that all promotional material and contracts for the sale of lots in the subdivision adequately display the following:

(i) The director of water resources' report or the developer's brief summary of the report as approved by the commissioner on the proposed water supply for the subdivision.

(ii) A statement describing the exemption under which the subdivision was approved, including the specific conditions of the exemption that were met. If the plat was approved by the legislative body of a city or town pursuant to an exemption authorized by section 9-463.01, subsection K or by the board of supervisors of a county pursuant to an exemption authorized by section 11-823, subsection B, paragraph 1, the subdivider shall record the document required by section 33-406.

(d) The subdivision received final plat approval from the city, town or county before the requirement for an adequate water supply became effective in the city, town or county, and there have been no material changes to the plat since the final plat approval. If changes were made to the plat after the final plat approval, the director of water resources shall determine whether the changes are material pursuant to the rules adopted by the director to implement section 45-108. If this subdivision applies, the state real estate commissioner shall require that all promotional materials and contracts for the sale of lots in the subdivision adequately display the director of water resources' report or the developer's brief summary of the report as approved by the commissioner on the proposed water supply for the subdivision.

2. If the subdivision is not located in a county that has adopted the provision authorized by section 11-823, subsection A or in a city or town that has enacted an ordinance pursuant to section 9-463.01, subsection O, and if the director of water resources, pursuant to section 45-108, reports an inadequate on-site supply of water to meet the needs projected by the developer or if no water is available, the state real estate commissioner shall require that all promotional material and contracts for the sale of lots in subdivisions approved by the commissioner adequately display the director of water resources' report or the developer's brief summary of the report as approved by the commissioner on the proposed water supply for the subdivision.

G. The commissioner may require the subdivider to supplement the notice of intention to subdivide lands and may require the filing of periodic reports to update the information contained in the original notice of intention to subdivide lands.

H. The commissioner may authorize the subdivider to file as the notice of intention to subdivide lands, in lieu of some or all of the requirements of subsection A of this section, a copy of the statement of record filed with respect to the subdivision pursuant to the federal interstate land sales full disclosure act if the statement complies with the requirements of the act and the regulations pertinent to the act.

I. Neither a real estate sales contract, conveyance, lease, assignment or other instrument to transfer any interest in subdivided land nor any covenant or restriction affecting real property shall contain any provision limiting the right of any party to appear or testify in support of or opposition to zoning changes, building permits or any other official acts affecting real property before a governmental body or official considering zoning changes, building permits or any other official acts affecting real property, whether the property is located within or outside of the boundaries of the subdivision. All contractual provisions that conflict with this subsection are declared to be contrary to public policy. Nothing contained in this subsection shall prohibit private restrictions on the use of any real property.

J. Before offering subdivided lands for lease or sale, the subdivider who makes any promises through any form of advertising media that the subdivided lands will be exclusively a retirement community or one that is limited to the residency of adults or senior citizens shall include the promises in the deed restrictions affecting any interest in real property within the subdivided lands.

K. Except as otherwise provided in this section, a subdivider shall not be required to disclose items that are over one mile from the subdivision boundaries. The existence of foreign nations or tribal lands shall also be disclosed if located within the one mile radius of the subdivision boundaries.

§ 32-2181.01 Power of commissioner to exempt certain subdivisions or fractional interests by special order

A. The commissioner may in his discretion by special order exempt from any one or all of the provisions of this article certain subdivided lands or fractional interests therein upon written petition and upon a showing by the petitioner, satisfactory to the commissioner, that compliance with the provisions of this article is not essential to the public interest or for the protection of buyers by reason of the special characteristics of the subdivided lands or fractional interests therein or the limited character and duration of the offer for sale, lease or financing or the special characteristics or limited number of fractional interests.

B. Special orders issued pursuant to this section shall relate to specific lands or specific fractional interests.

C. A petition filed under this section shall be accompanied by an initial fee of one hundred dollars. No fees shall be returnable irrespective of the nature of the action upon the petition.

§ 32-2181.02 Exempt sales and leases

A. The following are exempt under this article:

1. The sale or lease in bulk of six or more lots, parcels or fractional interests to one buyer in one transaction.

2. The sale or lease of lots or parcels of one hundred sixty acres or more.

B. The following are exempt from section 32-2181, subsection A and section 32-2183, subsection A:

1. The sale or lease of parcels, lots, units or spaces that are zoned and restricted to commercial or industrial uses.

2. The sale or lease of lots or parcels located in a single platted subdivision by a subdivider if:

(a) A public report has been issued within the past five years pursuant to this article on the subdivision lots or parcels.

(b) The subdivision meets all current requirements otherwise required of a subdivision under this article.

(c) The method of sale or lease of lots or parcels meets all current requirements under this article.

(d) The lots or parcels are included on a recorded subdivision plat that is approved by a municipal or county government.

(e) All roads within the subdivision, all utilities to the lots or parcels being offered for sale or lease and all other required improvements within the subdivision, other than a residence to be built, are complete, paid for and free of any blanket encumbrances.

(f) The roads, utilities or other improvements are not complete, but the completion of all improvements is assured pursuant to section 32-2183, subsection F.

(g) Except for matters relating to ownership and financing, there have been no material changes to the information set forth in the most recent public report issued for the subdivision lots that would require an amendment to the public report.

(h) No owner of a ten per cent or greater interest, subdivider, director, partner, agent, officer or developer of the subdivision has:

(i) Been convicted of a felony or any crime involving theft, dishonesty, violence against another person, fraud or real estate, regardless of whether the convictions were subsequently expunged.

(ii) Had a civil judgment entered against the person in a case involving allegations of misrepresentation, fraud, breach of fiduciary duty, misappropriation, dishonesty or, if the subject matter involved real property, securities or investments.

(iii) Had a business or professional license, including a real estate license, denied, suspended or revoked or voluntarily surrendered a business or professional license during the course of an investigative or disciplinary proceeding or other disciplinary action taken in this state or any other state.

(i) The sale of the subdivided lands violates no laws or ordinances of any governmental authority.

(j) Before the buyer's or lessee's execution of a purchase contract or lease, the subdivider has provided the buyer or lessee with a copy of the most recent public report on the lot and has taken a receipt from the buyer for the copy.

(k) The subdivider has provided to the buyer or lessee, along with the public report, a signed statement that the subdivider has reviewed and is in compliance with the terms of the exemption provided in this paragraph.

(l) Before sale or lease, the subdivider has notified the commissioner, on a form provided by the department, of the subdivider's intent to sell or lease lots or parcels pursuant to this paragraph. The notice shall include:

(i) The name, address and telephone number of the subdivider.

(ii) The name, address and telephone number of any real estate broker retained by the subdivider to make sales or leases of the lots.

(iii) The name and location of the subdivision.

(iv) The most recent subdivision public report reference number on the lots.

(v) The completion status of subdivision improvements.

3. The conveyance to a person who previously conveyed the lot to a home builder for the purpose of constructing a dwelling for the person.

4. The sale or lease by a person of individual lots or parcels that were separately acquired by the person from different persons and that were not acquired for the purpose of development if:

(a) The lots or parcels are not located in a platted subdivision.

(b) Each lot or parcel bears the same legal description that it bore when the lot or parcel was acquired by the person.

(c) The seller or lessor is in compliance with all other applicable state and local government requirements.

5. The sale of an improved lot in a subdivision that is located outside of this state if:

(a) The subdivision is located within the United States and the sale is exempt from the interstate land sales full disclosure act (P.L. 90-448; 82 Stat. 590; 15 United States Code sections 1701 through 1720).

(b) The subdivider is required by the state where the subdivision is located to deliver a public report or equivalent disclosure document to prospective purchasers and the subdivider delivers the report or equivalent disclosure document.

6. The sale of an improved lot in a subdivision located in this state where five or more sales were previously made by the seller if:

(a) The sale is the seller's first or second sale in the subdivision within the previous twelve month period.

(b) The subdivision is located within the corporate limits of a town or city.

(c) Electricity and telephone service are complete and available to the improved lot.

(d) Water and sewage service is complete and available to the improved lot.

(e) Streets and roads located outside of the subdivision provide permanent access to the subdivision and are complete and maintained by the county, town or city, or by a legally created and operational property owners' association.

(f) Streets within the subdivision are dedicated, provide permanent access to the lot, are complete to town or city standards and are maintained by the town or city or, in the case of private streets, a legally created and operational property owners' association accepts the responsibility of perpetual maintenance.

(g) All subdivision common area improvements, including landscaping, recreational facilities and other jointly used and maintained improvements, are complete and maintained by a legally created and operational property owners' association.

(h) The purchaser's down payment, earnest money, deposit or other advanced money is placed and held in a neutral escrow depository in this state until escrow closes and the deed is delivered to the purchaser.

(i) Within the previous twelve months the seller has not had an ownership interest in more than two lots in the subdivision, including an interest by option, an agreement for sale, a beneficial interest under a trust or a purchase contract.

C. Nothing in this section shall be construed to increase, decrease or otherwise affect any rights or powers granted the commissioner under this chapter.

D. This section does not apply to lands on which the commissioner has issued orders pursuant to sections 32-2154 and 32-2157 and section 32-2183, subsection M unless the commissioner has issued a public report on those lands subsequent to the date of the orders.

E. Nothing in this section shall be construed to increase, to decrease or to otherwise affect any rights or powers granted to political subdivisions of this state with respect to their jurisdictions.

§ 32-2181.03 Lot reservations; expiration

A. The notice of intent required by section 32-2181, subsection A or section 32-2195, subsection B and the issuance of a public report required by section 32-2183, subsection A or section 32-2195.03, subsection A are not required for any party to enter into a lot reservation on property located in this state.

B. Before the issuance of a public report, a deposit may be accepted from a prospective buyer as a lot reservation if all of the following requirements are met:

1. Before accepting any lot reservation, the prospective seller shall mail or deliver written notice of the seller's intention to accept lot reservations to the department. The notice shall include:

(a) The name, address and telephone number of the prospective seller.

(b) The name, address and telephone number of any real estate broker retained by the prospective seller to promote the lot reservation program.

(c) The name and location of the project for which lot reservations are to be offered.

(d) The form to be used for accepting lot reservations, subject to approval by the commissioner.

2. The reservation deposit for a single lot or parcel shall not exceed five thousand dollars.

3. Within one business day after a reservation is accepted by the prospective seller, the reservation deposit shall be delivered to an escrow agent licensed pursuant to title 6, chapter 7 and deposited by the escrow agent in a depository insured by an agency of the United States. The escrow account may be interest bearing at the direction of either the prospective seller or prospective buyer. Payment of any account fees and payment of interest monies shall be as agreed to between the prospective buyer and prospective seller. All reservation deposits shall remain in an escrow account until cancellation or termination of the lot reservation or execution of a purchase contract.

4. Within fifteen calendar days of receipt by the prospective seller of the public report issued by the commissioner relative to the reserved lot or parcel, the prospective seller shall provide the prospective buyer with a copy of the public report and a copy of the proposed purchase contract for the sale of the lot or parcel. The prospective buyer and prospective seller have seven business days after the prospective buyer's receipt of the public report and the proposed purchase contract within which to enter into a contract for the purchase of the lot or parcel. If the prospective buyer and prospective seller do not enter into a contract for the purchase of the lot or parcel within the seven business day period, the reservation automatically terminates. The prospective seller has no cancellation rights other than as provided in this paragraph.

5. A prospective buyer may cancel a lot reservation at any time before the execution of a purchase contract by delivering written notice of termination to the prospective seller.

6. Within five business days after a lot reservation has been terminated for any reason, the prospective seller shall refund to the prospective buyer all reservation deposits made by the prospective buyer including any interest monies earned less any account fees agreed upon, if applicable. The escrow agent shall refund to the prospective buyer all reservation deposits made by the prospective buyer including any interest monies earned less any account fees agreed upon if the prospective seller is not available. After this refund neither the prospective buyer nor the prospective seller has any obligation to the other arising out of the lot reservation.

7. A prospective buyer may not transfer rights under a reservation without the prior written consent of the prospective seller, and any purported transfer without the consent of the prospective seller is voidable at the sole discretion of the prospective seller.

8. If the department denies an application for a public report on the development on which lot reservations were taken, within five business days of notification by the department, the prospective seller shall notify in writing each prospective buyer who entered into a lot reservation agreement. The prospective seller shall return any reservation deposits previously taken.

9. All notices required by this section to be given to the department, the prospective buyer or the prospective seller shall be in writing and either hand delivered or sent by certified mail, return receipt requested, with postage fully prepaid. Notices sent by mail are deemed delivered on the earlier of actual receipt, as evidenced by the delivery receipt, or seven calendar days after being deposited in the United States mail.

10. Each lot reservation form shall contain the following statement:

The state real estate department has not inspected or approved this project and no public report has yet been issued for the project. No offer to sell may be made and no offer to purchase may be accepted before issuance of a public report for the project.

C. The commissioner may deny authorization to accept lot reservations under this section to any person who has violated or is in violation of any provision of this chapter.

D. The authority to take lot reservations under this section expires two years after the date the commissioner receives notice of the intent to take lot reservations from a developer.

§ 32-2182 Examination of subdivision by commissioner; fee; time limit to determine violation

A. The commissioner shall examine any subdivision offered for sale or lease and shall make public his findings. The total cost of travel and subsistence expenses incurred by the department in the examination, in addition to the initial filing fee provided for in this section, shall be borne by the subdivider on the basis of actual cost to the department. A filing fee of five hundred dollars or such lesser fee as determined by the commissioner shall accompany the written notification required in section 32-2181. The commissioner may allow the developer to outsource and pay for the cost of physical inspections so long as the department approves the inspector and the inspection for content.

B. The commissioner may, but is not required to, inspect a subdivision site if all of the following apply:

1. The commissioner has previously inspected the subdivision within the past two years.

2. All proposed improvements were complete at the time of the previous inspection.

3. The sales offering does not include any changes to the physical aspects of the subdivision, including the plat, site and locations of improvements.

C. The commissioner is not required to complete the inspection of the subdivision site before issuing a public report. Nevertheless, if the commissioner discovers anything during any subsequent inspection that would have been grounds to deny issuance of the public report or anything that would have warranted additional disclosure in the public report, the commissioner may issue a summary order as provided in section 32-2157.

D. Notwithstanding any other law, the commissioner has no more than five years after the date of an initial complaint or initiation of an investigation by the commissioner to determine if the sale or lease violated this article.

§ 32-2183 Subdivision public reports; denial of issuance; unlawful sales; voidable sale or lease; order prohibiting sale or lease; investigations; hearings; summary orders

A. On examination of a subdivision, the commissioner, unless there are grounds for denial, shall issue to the subdivider a public report authorizing the sale or lease in this state of the lots, parcels or fractional interests within the subdivision. The report shall contain the data obtained in accordance with section 32-2181 and any other information that the commissioner determines is necessary to implement the purposes of this article. If any of the lots, parcels or fractional interests within the subdivision are located within territory in the vicinity of a military airport or ancillary military facility as defined in section 28-8461, under a military training route as delineated in the military training route map prepared pursuant to section 37-102 in a military installation or range or Arizona national guard site influence area as delineated in the maps prepared pursuant to section 37-102, subsection H, paragraph 4, under restricted air space as delineated in the restricted air space map prepared pursuant to section 37-102 or contained in the military electronics range as delineated in the military electronics range map prepared pursuant to section 37-102, the report shall include, in bold twelve-point font block letters on the first page of the report, the statements required pursuant to section 28-8484, subsection A, section 32-2183.05 or section 32-2183.06 and, if the department has been provided a map prepared pursuant to section 28-8484, subsection B or section 37-102, the report shall include a copy of the map. The military airport report requirements do not require the amendment or reissuance of any public report issued on or before December 31, 2001 or on or before December 31 of the year in which the lots, parcels or fractional interests within a subdivision become territory in the vicinity of a military airport or ancillary military facility. The military training route report requirements do not require the amendment or reissuance of any public report issued on or before December 31, 2004. The restricted air space report requirements do not require the amendment or reissuance of any public report issued on or before December 31, 2006. The military electronics range report requirements do not require the amendment or reissuance of any public report issued on or before December 31, 2008. A military installation or range or Arizona national guard site report requirements do not require the amendment or reissuance of any public report issued on or before December 31, 2024. The commissioner shall require the subdivider to reproduce the report, make the report available to each initial prospective customer and furnish each initial buyer or lessee with a copy before the buyer or lessee signs any offer to purchase or lease, taking a receipt therefor.

B. This section does not require a public report issued sixty or fewer days before the filing of the military electronics range map or the military installation or range or Arizona national guard site influence area map prepared pursuant to section 37-102 to meet the military electronics range or military installation or range or Arizona national guard site notification requirements of this section.

C. A public report issued sixty-one or more days after the filing of the military electronics range map or the military installation or range or Arizona national guard site influence area map prepared pursuant to section 37-102 shall meet all of the requirements of subsection A of this section.

D. Notwithstanding subsection A of this section, a subdivider may elect to prepare a final public report for use in the sale of improved lots as defined in section 32-2101, as follows:

1. The subdivider shall prepare the public report and provide a copy of the report to the commissioner with the submission of the notification required by sections 32-2181 and 32-2184 and shall comply with all other requirements of this article.

2. An initial filing fee of $500 or an amended filing fee of $250 shall accompany the notification required by paragraph 1 of this subsection.

3. The department shall assign a registration number to each notification and public report submitted pursuant to this subsection and shall maintain a database of all of these submissions. The subdivider shall place the number on each public report.

4. On receipt of the notification and public report, the department shall review and issue within ten business days either a certification that the notification and public report are administratively complete or a denial letter if it appears that the application or project is not in compliance with all legal requirements, that the applicant has a background of violations of state or federal law or that the applicant or project presents an unnecessary risk of harm to the public. If the commissioner has received the notification and public report but has not issued a certification or a denial letter within ten business days pursuant to this paragraph, the notification and public report are administratively complete.

5. A subdivider may commence sales or leasing activities as permitted under this article after obtaining a certificate of administrative completeness from the commissioner.

6. Before or after the commissioner issues a certificate of administrative completeness or, if applicable, after the notification and public report are deemed to be administratively complete pursuant to paragraph 4 of this subsection, the department may examine any public report, subdivision or applicant that has applied for or received the certificate. If the commissioner determines that the subdivider or subdivision is not in compliance with any requirement of state law or that grounds exist under this chapter to suspend, deny or revoke a public report, the commissioner may commence an administrative action under section 32-2154 or 32-2157. If the subdivider immediately corrects the deficiency and comes into full compliance with state law, the commissioner shall vacate any action that the commissioner may have commenced pursuant to section 32-2154 or 32-2157.

7. The department shall provide forms and guidelines for the submission of the notification and public report pursuant to this section.

E. The commissioner may suspend, revoke or deny issuance of a public report on any of the following grounds:

1. Failure to comply with this article or the rules of the commissioner pertaining to this article.

2. The sale or lease would constitute misrepresentation to or deceit or fraud of the purchasers or lessees.

3. Inability to deliver title or other interest contracted for.

4. Inability to demonstrate that adequate financial or other arrangements acceptable to the commissioner have been made for completion of all streets, sewers, electric, gas and water utilities, drainage and flood control facilities, community and recreational facilities and other improvements included in the offering.

5. Failure to make a showing that the lots, parcels or fractional interests can be used for the purpose for which they are offered.

6. The owner, agent, subdivider, officer, director or partner, subdivider trust beneficiary holding ten percent or more direct or indirect beneficial interest or, if a corporation, any stockholder owning ten percent or more of the stock in the corporation has:

(a) Been convicted of a felony or misdemeanor involving fraud or dishonesty or involving conduct of any business or a transaction in real estate, cemetery property, timeshare intervals or membership camping campgrounds or contracts.

(b) Been permanently or temporarily enjoined by order, judgment or decree from engaging in or continuing any conduct or practice in connection with the sale or purchase of real estate or cemetery property, timeshare intervals, membership camping contracts or campgrounds, or securities or involving consumer fraud or the racketeering laws of this state.

(c) Had an administrative order entered against the person by a real estate regulatory agency or security regulatory agency.

(d) Had an adverse decision or judgment entered against the person involving fraud or dishonesty or involving the conduct of any business or transaction in real estate, cemetery property, timeshare intervals or membership camping campgrounds or contracts.

(e) Disregarded or violated this chapter or the rules of the commissioner pertaining to this chapter.

(f) Controlled an entity to which subdivision (b), (c), (d) or (e) applies.

7. Procurement or an attempt to procure a public report by fraud, misrepresentation or deceit or by filing an application for a public report that is materially false or misleading.

8. Failure of the declaration for a condominium created pursuant to title 33, chapter 9, article 2 to comply with the requirements of section 33-1215 or failure of the plat for the condominium to comply with the requirements of section 33-1219. The commissioner may require an applicant for a public report to submit a notarized statement signed by the subdivider or an engineer or attorney licensed to practice in this state certifying that the condominium plat and declaration of condominium are in compliance with the requirements of sections 33-1215 and 33-1219. If the notarized statement is provided, the commissioner is entitled to rely on this statement.

9. Failure of any blanket encumbrance or valid supplementary agreement executed by the holder of the blanket encumbrance to contain provisions that enable the purchaser to acquire title to a lot or parcel free of the lien of the blanket encumbrance, on completion of all payments and performance of all of the terms and provisions required to be made or performed by the purchaser under the real estate sales contract by which the purchaser has acquired the lot or parcel. The subdivider shall file copies of documents acceptable to the commissioner containing these provisions with the commissioner before the sale of any subdivision lot or parcel subject to a blanket encumbrance.

10. Failure to demonstrate permanent access to the subdivision lots or parcels.

11. The use of the lots presents an unreasonable health risk.

F. It is unlawful for a subdivider to sell any lot in a subdivision unless one of the following occurs:

1. All proposed or promised subdivision improvements are completed.

2. The completion of all proposed or promised subdivision improvements is assured by financial arrangements acceptable to the commissioner. The financial arrangements may be made in phases for common community and recreation facilities required by a municipality or county as a stipulation for approval of a plan for a master planned community.

3. The municipal or county government agrees to prohibit occupancy and the subdivider agrees not to close escrow for lots in the subdivision until all proposed or promised subdivision improvements are completed.

4. The municipal or county government enters into an assurance agreement with any trustee not to convey lots until improvements are completed within the portion of the subdivision containing these lots, if the improvements can be used and maintained separately from the improvements required for the entire subdivision plat. The agreement shall be recorded in the county in which the subdivision is located.

G. If the subdivision is within an active management area, as defined in section 45-402, the commissioner shall deny issuance of a public report or the use of any exemption pursuant to section 32-2181.02, subsection B unless the subdivider has been issued a certificate of assured water supply by the director of water resources and has paid all applicable fees pursuant to sections 48-3772 and 48-3774.01, or unless the subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an assured water supply by the director of water resources pursuant to section 45-576 or is exempt from the requirement pursuant to section 45-576.

H. In areas outside of active management areas, if the subdivision is located in a county that has adopted the provision authorized by section 11-823, subsection A or in a city or town that has enacted an ordinance pursuant to section 9-463.01, subsection O, the commissioner shall deny issuance of a public report or the use of any exemption pursuant to section 32-2181.02, subsection B unless one of the following applies:

1. The director of water resources has reported pursuant to section 45-108 that the subdivision has an adequate water supply.

2. The subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an adequate water supply by the director of water resources pursuant to section 45-108.

3. The plat was approved pursuant to an exemption authorized by section 9-463.01, subsection K, pursuant to an exemption authorized by section 11-823, subsection B, paragraph 1, pursuant to an exemption granted by the director of water resources under section 45-108.02 and the exemption has not expired or pursuant to an exemption granted by the director of water resources under section 45-108.03.

4. The subdivision received final plat approval from the city, town or county before the requirement for an adequate water supply became effective in the city, town or county, and there have been no material changes to the plat since the final plat approval. If changes were made to the plat after the final plat approval, the director of water resources shall determine whether the changes are material pursuant to the rules adopted by the director to implement section 45-108.

I. A subdivider shall not sell or lease or offer for sale or lease in this state any lots, parcels or fractional interests in a subdivision without first obtaining a public report from the commissioner except as provided in section 32-2181.01 or 32-2181.02, and a certificate of administrative completeness issued pursuant to this section. Unless exempt, the sale or lease of subdivided lands before issuance of the public report or failure to deliver the public report to the purchaser or lessee shall render the sale or lease rescindable by the purchaser or lessee. An action by the purchaser or lessee to rescind the transaction shall be brought within three years after the date of execution of the purchase or lease agreement by the purchaser or lessee. In any rescission action, the prevailing party is entitled to reasonable attorney fees as determined by the court.

J. On a print advertisement in a magazine or newspaper or on an internet advertisement that advertises a specific lot or parcel of a subdivider, the subdivider shall include a disclosure stating that "a public report is available on the state real estate department's website".

K. Any applicant objecting to the denial of a public report, within thirty days after receipt of the order of denial, may file a written request for a hearing. The commissioner shall hold the hearing within twenty days after receipt of the request for a hearing unless the party requesting the hearing has requested a postponement. If the hearing is not held within twenty days after a request for a hearing is received, plus the period of any postponement, or if a proposed decision is not rendered within forty-five days after submission, the order of denial shall be rescinded and a public report issued.

L. On the commissioner's own motion, or when the commissioner has received a complaint and has satisfactory evidence that the subdivider or the subdivider's agent is violating this article or the rules of the commissioner or has engaged in any unlawful practice as defined in section 44-1522 with respect to the sale of subdivided lands or deviated from the provisions of the public report, the commissioner may investigate the subdivision project and examine the books and records of the subdivider. For the purpose of examination, the subdivider shall keep and maintain records of all sales transactions and funds received by the subdivider pursuant to the sales transactions and shall make them accessible to the commissioner on reasonable notice and demand.

M. On the commissioner's own motion, or when the commissioner has received a complaint and has satisfactory evidence that any person has violated this article or the rules of the commissioner or has engaged in any unlawful practice as defined in section 44-1522 with respect to the sale of subdivided lands or deviated from the provisions of the public report or special order of exemption, or has been indicted for fraud or against whom an information for fraud has been filed or has been convicted of a felony, before or after the commissioner issues the public report as provided in subsection A of this section, the commissioner may conduct an investigation of the matter, issue a summary order as provided in section 32-2157, or provide notice and hold a public hearing and, after the hearing, may issue the order or orders the commissioner deems necessary to protect the public interest and ensure compliance with the law, rules or public report or the commissioner may bring action in any court of competent jurisdiction against the person to enjoin the person from continuing the violation or engaging in or doing any act or acts in furtherance of the violation. The court may make orders or judgments, including the appointment of a receiver, necessary to prevent the use or employment by a person of any unlawful practices, or which may be necessary to restore to any person in interest any monies or property, real or personal, that may have been acquired by means of any practice in this article declared to be unlawful.

N. When it appears to the commissioner that a person has engaged in or is engaging in a practice declared to be unlawful by this article and that the person is concealing assets or self or has made arrangements to conceal assets or is about to leave the state, the commissioner may apply to the superior court, ex parte, for an order appointing a receiver of the assets of the person or for a writ of ne exeat, or both.

O. The court, on receipt of an application for the appointment of a receiver or for a writ of ne exeat, or both, shall examine the verified application of the commissioner and other evidence that the commissioner may present the court. If satisfied that the interests of the public require the appointment of a receiver or the issuance of a writ of ne exeat without notice, the court shall issue an order appointing the receiver or issue the writ, or both. If the court determines that the interests of the public will not be harmed by the giving of notice, the court shall set a time for a hearing and require notice be given as the court deems satisfactory.

P. If the court appoints a receiver without notice, the court shall further direct that a copy of the order appointing a receiver be served on the person engaged in or engaging in a practice declared to be unlawful under this article by delivering the order to the last address of the person that is on file with the state real estate department. The order shall inform the person that the person has the right to request a hearing within ten days after the date of the order and, if requested, the hearing shall be held within thirty days after the date of the order.

§ 32-2183.01 Advertising material; contents; order prohibiting use; costs of investigation; drawings or contests

A. Within ten days after request by the commissioner, the subdivider shall file with the commissioner a copy of any advertising material used in connection with sales of the subdivided lands.

B. No advertising, communication or sales literature of any kind, including oral statements by salespersons or other persons, shall contain:

1. Any untrue statement of material fact or any omission of material fact which would make such statement misleading in light of the circumstances under which such statement was made.

2. Any statement or representation that the lot or parcels are offered without risk or that loss is impossible.

3. Any statement or representation or pictorial representation of proposed improvements or nonexistent scenes without clearly indicating the improvements are proposed and the scenes do not exist.

4. Any statement or representation that the lot or parcels are suitable as homesites or building lots unless either of the following is true:

(a) Potable water is available from a certificated public utility or a municipal corporation and either an individual sewage disposal system will operate or a sewer system is available from a certified public utility or a municipal corporation.

(b) Facts to the contrary are clearly and conspicuously included in each advertisement pertaining to the property.

C. All advertising and sales literature shall be consistent with the information contained in the notice of intention pursuant to section 32-2181 and the public report pursuant to section 32-2183. The subdivider shall retain and have available for department review copies of all advertising materials used in marketing lots in the subdivision for three years after the last use of the advertising materials.

D. If it appears to the commissioner that any person is or has engaged in advertising or promotional practices in violation of this article, the commissioner may hold a hearing as a contested case under title 41, chapter 6, article 10 and issue such order or orders as he deems necessary to protect the public interest, or the commissioner may bring an action in any court of competent jurisdiction against such person to enjoin such person from continuing such violation.

E. The commissioner may adopt such rules and guidelines as the commissioner deems necessary to protect the public interest and to assure that all advertising and promotional practices with respect to land subject to the provisions of this article are not false or misleading.

F. It is unlawful for any owner, subdivider, agent or employee of any subdivision or other person with intent directly or indirectly to sell or lease lots or parcels subject to the provisions of this article to authorize, use, direct or aid in any advertising, communication, sales literature or promotional practice which violates this section.

G. Nothing contained in this section shall apply to the owner or publisher of a newspaper or magazine or to any other publication of printed matter wherein such advertisement appears or to the owner or operator of a radio or television station which disseminates such advertisement when the owner, publisher or operator has no knowledge of the intent, design or purpose of the advertiser.

H. For any subdivision investigation made under section 32-2183 of an out-of-state subdivision or any in-state subdivision to which the commissioner issues any order necessary to protect the public interest and insure compliance with the law, rules or public report, the subdivider shall reimburse travel and subsistence expenses incurred by the department.

I. A subdivider may hold a drawing or contest to induce prospective buyers to visit a subdivision if all of the following requirements are met:

1. The subdivision has in effect a current public report.

2. The subdivider is not the subject of an ongoing investigation by the department. The department may give permission to hold a drawing or contest to a subdivider who is the subject of an ongoing investigation.

3. The details of the contest or drawing, including the method of awarding any prize, are submitted to the department for review and approval prior to holding the contest or drawing.

4. Any drawing or contest is limited in time, scope and geographic location.

5. The material terms of the drawing or contest are fully disclosed in writing to participants.

6. No fee is charged to any person who participates in a drawing or contest.

7. No participant in a drawing or contest, as a condition of participation, must attend a sales presentation or take a tour.

8. The subdivider is in compliance with all other applicable federal, state and local laws involving drawings or contests.

9. The subdivider is responsible at all times for the lawful and proper conduct of any drawing or contest.

§ 32-2183.02 Recording of actions

A. Whenever the commissioner issues a cease and desist order, obtains a court order enjoining further sales, issues an order of prohibition or suspends approval of a subdivision, the action shall be recorded in the book of deeds in the office of the county recorder in any county in which the subdivision property is located and include the legal description of the affected land. The commissioner shall also provide notice of the order or suspension to all affected parties with an ownership interest of record in any lot, parcel or fractional interest in the subdivision property within ten business days of issuing the order of suspension.

B. In the event of revocation of any of the orders which require recording in subsection A, an order of release shall be recorded in the same manner within ten business days after the revocation.

C. The department shall record a public notice for each plat, parcel or lot in the county in which the subdivided land is located when the land has been subdivided in violation of this article. The notice shall include the legal description of the affected land and provide that a city or town pursuant to authority granted by the state under title 9 or to a county pursuant to authority granted under title 11 may decline to issue building permits for the land until the requisite state and local approval is acquired. The department shall record a release in the same manner within ten business days after the subdivision is in compliance with this article.

§ 32-2183.03 Civil liabilities

A. When any part of the notice of intention filed pursuant to section 32-2181 contains an untrue statement of a material fact or omits a material fact required to be stated in such notice, the subdivider or agent shall be liable as provided in this section to any person who acquires a lot or parcel in the subdivision covered by such notice of intention during such period the notice of intention remained uncorrected unless at the time of such acquisition the person acquiring the lot knew of such untruth or omission.

B. Any subdivider or agent who sells or leases a lot or parcel in a subdivision in violation of section 32-2183 or by means of a public report that contains an untrue statement of a material fact or omits a material fact required to be stated in such report shall be liable to the purchaser of such lot or parcel as provided in this section unless at the time of purchase the purchaser knew of the untruth or omission.

C. It is unlawful for a subdivider or agent in selling or leasing, or offering to sell or lease, any lot or parcel in a subdivision to:

1. Employ any device, scheme or artifice to defraud.

2. Obtain money or property by means of a material misrepresentation with respect to any information included in the notice of intention or the public report or with respect to any other information pertinent to the lot, parcel or subdivision and on which the purchaser relies.

3. Engage in any transaction, practice or course of business that operates or would operate as a fraud or deceit on a purchaser.

D. Except as provided in subsection E of this section, damages in any suit brought pursuant to this section shall be the difference between the purchase price of the lot or parcel plus the cost of any improvements made to such lot or parcel and the following applicable amount:

1. The price at which such lot or parcel was sold in a bona fide market transaction prior to suit or judgment.

2. If the lot or parcel has not been sold before judgment, the current market value of the lot or parcel and any improvements as of the date the suit was filed.

E. The damages described in subsection D of this section shall not exceed the dollar amount that is the difference in price or market value that results from the untrue statement of material fact or omission of material fact that is required to be stated in the public report.

F. In any action in which a violation of this section is established the purchaser shall also be entitled to recover reasonable attorney fees as determined by the court. If a violation is not established, the court, in its discretion, may award reasonable attorney fees to the defendant.

G. Every person who becomes liable to make any payment pursuant to this section may recover contribution as in cases of contract from any person who, if sued separately, would have been liable to make the same payment.

H. In no case shall the amount recoverable pursuant to this section exceed the sum of the purchase price of the lot or parcel, the reasonable cost of improvements installed by the purchaser and reasonable court costs and attorneys' fees.

I. Nothing contained in this section shall be construed to preclude any other remedies that may exist at law or in equity.

J. No action shall be maintained to enforce any liability created pursuant to subsection A or B of this section unless brought within one year after the discovery of the untrue statement or the omission or after such discovery should have been made by the exercise of reasonable diligence. No action shall be maintained to enforce any liability created pursuant to subsection C of this section unless brought within two years after the violation on which it is based. In no event shall any such action be brought by a purchaser more than three years after the sale or lease to such purchaser.

§ 32-2183.04 Surety bond requirement; form; cancellation; effective date; certificate of deposit

A. In addition to any other fees assessed under this chapter, any subdivider prior to the sale or lease of any existing unimproved lots or parcels and any subdivider who is subsequently required to give notice under section 32-2181 or 32-2195 or who petitions for exemption under section 32-2181.01 may be required to post a surety bond with the commissioner if any of the following applies:

1. The subdivider has been found in violation of any subdivision laws of this state or of any other state or any of the rules of the state real estate department.

2. The subdivider has been found in violation of the interstate land sales full disclosure act or any of the rules and regulations of the office of interstate land sales registration.

3. The subdivider has been found by a court of competent jurisdiction to be guilty of fraud or misrepresentation in the sale of subdivided lands and the finding or determination has become a final adjudication.

4. The subdivider has been found by an administrative agency to be guilty of fraud or misrepresentation in the sale of subdivided lands and from the decision there is no appeal.

B. The bond required by subsection A of this section shall be in a form acceptable to the commissioner and shall be executed by the subdivider as principal with a corporation duly authorized to transact surety business in this state. Evidence of a surety bond shall be submitted to the commissioner in accordance with rules adopted by the commissioner. The bond shall be in favor of the state and shall be subject to claims by any person who is injured by the fraud or misrepresentation of a subdivider in the purchase or lease of a lot or parcel. One bond shall be required for each subdivision or each common plan of subdivided lands subject to the requirements of article 7 of this chapter. The principal sum of the bond shall be in an amount the commissioner deems necessary to protect purchasers when the volume of business of the subdivider and other relevant factors are taken into consideration.

C. The surety bond shall continue in effect until two years after all sales within the subdivision or common plan have been completed. No suit may be maintained on the bond after the expiration of two years following the subdivider's sale or lease of a lot or parcel to the person maintaining the action.

D. Upon receipt by the commissioner of notice to cancel a bond by any surety, the commissioner shall immediately notify the subdivider on the bond of the effective date of cancellation of the bond and the subdivider shall furnish a like bond within thirty days after mailing of notice by the commissioner or the subdivider's right to sell or lease lots or parcels in any subdivision shall be suspended. Notice to the subdivider shall be by certified mail in a sealed envelope with postage fully prepaid, addressed to the subdivider's latest address of record in the commissioner's office. The subdivider's right to sell or lease lots or parcels shall be suspended by operation of law on the date the bond is canceled, unless a replacement bond is filed with the commissioner.

E. In lieu of posting a bond as set forth in this section, the subdivider may post a certificate of deposit with the commissioner in accordance with the provisions of subsections A, B and C of this section.

§ 32-2183.05 Military training route disclosure; military electronics range disclosure; military installation, range and Arizona national guard site disclosure; residential property

A. Any public report that is issued after December 31, 2004 pursuant to section 32-2183 or 32-2195.03 and that is applicable to property located under a military training route, as delineated in the military training route map prepared by the state land department pursuant to section 37-102, and any public report that is issued after December 31, 2008 and that is applicable to property located in a military electronics range as delineated in the military electronics range map prepared by the state land department pursuant to section 37-102, and any public report that is issued after December 31, 2024 and that is applicable to property located fully or partially within a military installation's or range's or Arizona national guard site's influence area as delineated in the maps prepared by the state land department pursuant to section 37-102, subsection H, paragraph 4, shall include the following statements:

1. The property is located under a military training route, in a military electronics range or in a military installation's or range's or Arizona national guard site's influence area.

2. The state land department and the state real estate department maintain military training route maps, military electronics range maps and military installation and range and Arizona national guard site influence area maps available to the public.

3. The military training route map, military electronics range map and military installation and range and Arizona national guard site influence area maps are posted on the state real estate department's website.

B. The public report prescribed by subsection A of this section may contain a disclaimer that the subdivider has no control over the military training routes as delineated in the military training route map or the timing or frequency of flights and associated levels of noise, has no control over the military electronics range and its testing and training operations and has no control over the military installation's or range's or Arizona national guard site's operations.

C. For any lot reservation or conditional sale that occurs before the issuance of a public report, the disclosure statements listed in subsection A of this section shall be included within the reservation document or conditional sales contract.

D. This section does not require the amendment or reissuance of any public report issued on or before December 31, 2004 that is applicable to property located under a military training route, as delineated in the military training route map prepared by the state land department pursuant to section 37-102 or on or before December 31, 2008 that is applicable to property located in a military electronics range, as delineated in the military electronics range map prepared by the state land department pursuant to section 37-102 or on or before December 31, 2024 that is applicable to property located fully or partially within a military installation's or range's or Arizona national guard site's influence area as delineated in the map prepared by the state land department pursuant to section 37-102 subsection H, paragraph 4, or the amendment or reissuance of any reservation document or conditional sales contract accepted on or before December 31, 2004, on or before December 31, 2008 or on or before December 31, 2024.

E. Notwithstanding any other law, if the public report complies with subsection A of this section, a subdivider is not liable to any person or governmental entity for any act or failure to act in connection with the disclosure of a military training route as delineated in the military training route map or a military electronics range as delineated in the military electronics range map or the military installation or range or Arizona national guard site as delineated on the influence area maps.

F. This section does not require a public report issued sixty or fewer days before the filing of the military electronics range map or an influence area map prepared pursuant to section 37-102 to meet the military electronics range or military installation's or range's or Arizona national guard site's notification requirements of this section.

G. A public report issued sixty-one or more days after the filing of the military electronics range map or influence area map prepared pursuant to section 37-102 shall meet all of the requirements of subsection A of this section.

§ 32-2183.06 Restricted air space disclosure; residential property

A. Any public report that is issued after December 31, 2006 pursuant to section 32-2183 or 32-2195.03 and that is applicable to property located under restricted air space, as delineated in the restricted air space map prepared by the state land department pursuant to section 37-102, shall include the following statements:

1. The property is located under restricted air space.

2. The state land department and the state real estate department maintain restricted air space maps available to the public.

3. The restricted air space map is posted on the state real estate department's web site.

B. The public report prescribed by subsection A of this section may contain a disclaimer that the subdivider has no control over the restricted air space as delineated in the restricted air space map or the timing or frequency of flights and associated levels of noise.

C. For any lot reservation or conditional sale that occurs before the issuance of a public report, the disclosure statements listed in subsection A of this section shall be included within the reservation document or conditional sales contract.

D. This section does not require the amendment or reissuance of any public report issued on or before December 31, 2006 or the amendment or reissuance of any reservation document or conditional sales contract accepted on or before December 31, 2006.

E. Notwithstanding any other law, if the public report complies with subsection A of this section, a subdivider is not liable to any person or governmental entity for any act or failure to act in the disclosure of restricted air space as delineated in the restricted air space map.

§ 32-2184 Change of subdivision plan after approval by commissioner; notice

A. It is unlawful for any subdivider, after submitting to the commissioner the plan under which a subdivision is to be offered for sale or lease, and securing his approval, to change the plan materially or to continue to offer lots or parcels within the subdivision for sale or lease after a change has occurred that materially affects the plan without first notifying the commissioner in writing of the intended change. Material changes covered by this section shall be prescribed in the rules of the commissioner. Upon receipt of any notice of a material change, the commissioner may require the amendment of the public report and, if he determines such action to be necessary for the protection of purchasers, suspend his approval of sale or lease pending amendment of the public report in accordance with section 32-2157.

B. If there has been a material change to the plan under which a subdivision is offered for sale or lease and an amendment to the public report is required, a purchaser or lessee who has executed a real estate sales contract or lease before the occurrence of the material change but has not yet completed performance under the real estate sales contract or has not taken possession under the lease may cancel the real estate sales contract or lease within ten days after receiving written notice from the subdivider of the material change if the material change adversely impacts the purchaser or lessee and was caused by the subdivider or an entity controlled by the subdivider or if the subdivider had actual knowledge of the material change at the time the real estate sales contract or lease was executed by the purchaser or lessee. Notwithstanding that the subdivider was not aware of the material change and did not cause the change to come about, the purchaser or lessee may cancel the sales contract or lease as provided by this subsection if the material change would involve an occupant's health, safety or ability to make designated use of the lot. This subsection does not create any cause of action, for rescission or otherwise, in favor of a purchaser who has not been impacted adversely by the material change.

C. A filing fee of one-half of the amount that was charged for the initial public report pursuant to section 32-2182, but no less than two hundred fifty dollars, shall accompany an application for an amended public report. If inspection of a subdivision site is necessary, the department shall assess an inspection fee pursuant to section 32-2182, subsection A.

§ 32-2185 Delivery of clear title by vendor on performance of contract by vendee

It is unlawful to sell to any purchaser any subdivision lot or parcel that is subject to a blanket encumbrance, unless there is a provision in the blanket encumbrance, or in a valid supplementary agreement executed by the holder of the blanket encumbrance, enabling the purchaser to acquire title to the lot or parcel free of the blanket encumbrance upon completion of all payments and performances of all the terms and provisions required to be made or performed by the purchaser under the real estate sales contract. Certified or verified copies of documents acceptable to the commissioner containing such provisions shall be filed with the commissioner prior to the sale of any subdivision lot or parcel subject to a blanket encumbrance.

§ 32-2185.01 Sale of unimproved lots or parcels; conditions precedent; methods

A. It is unlawful for the owner, agent or subdivider of subdivided lands to sell or offer to sell unimproved lots or parcels within a subdivision unless the sale complies with one of the following:

1. Execution, delivery and recording of a deed in good and sufficient form conveying to the purchaser merchantable and marketable title to the property subject only to such exceptions as may be agreed to in writing by the purchaser. Any balance remaining unpaid by the purchaser may be evidenced by a note and mortgage or deed of trust. The deed and mortgage or deed of trust shall be recorded by the owner, agent or subdivider within sixty days of execution thereof by the purchaser.

2. Execution, delivery, recording and depositing in escrow, not later than sixty days after execution by the purchaser, with a person or firm authorized to receive escrows under the laws of this state or the state in which the subdivision is located, of a real estate sales contract pertaining to the property, which contract sets forth the full and correct legal description of the property being sold and the precise terms and conditions under which the property is being sold together with:

(a) A copy of a preliminary title report showing the conditions of title to the property on the date of the real estate sales contract or a preliminary title report showing the condition of title on an earlier date together with a copy of any document, recorded subsequent to the date of the preliminary title report, which affects the title to the property.

(b) An executed deed in good and sufficient form conveying to the purchaser merchantable and marketable title, subject only to such exceptions as may be agreed to in writing by the purchaser which deed, under the terms of the real estate sales contract, is to be delivered to the escrow agent provided for under the contract within sixty days of the purchaser's execution of the contract and is to be recorded within sixty days after purchaser's compliance with the obligations imposed on him under the contract together with any release or partial release of any blanket encumbrance pertaining to said lot.

(c) Any and all documents necessary to release or extinguish any blanket encumbrance to the extent it applies to the real property being sold, or a partial release of the lot or parcel being sold from the terms and provisions of such blanket encumbrance.

3. Execution, delivery and recording of a deed to the real property to a trustee together with a trust agreement and any and all documents necessary to release or extinguish any blanket encumbrance to the extent it applies to property being sold, or a partial release of the lot or parcel being sold from the terms and provisions of such blanket encumbrance. The trust agreement shall provide for conveyance by the trustee to a purchaser, upon purchaser's compliance with the obligations imposed on him under his real estate sales contract, by a deed in good and sufficient form conveying to the purchaser merchantable and marketable title, subject only to such exceptions as may be agreed to in writing by the purchaser. The real estate sales contract of the lot being sold shall be recorded by the owner, agent or subdivider within sixty days of execution of the real estate sales contract by the purchaser. The trustee shall execute, record and deliver the deed and record the release or partial release required by this subsection within sixty days of the purchaser's fulfillment of the terms of his real estate sales contract.

B. All documents required to be recorded under the provisions of this section shall be recorded in the county and state wherein the subdivision is located.

C. Any sale or assignment of a mortgage, deed of trust or real estate sales contract by an owner, agent, subdivider or trustee shall be recorded in the county and state where the subdivision is located and a notice of such sale or assignment provided to the commissioner, the recording and notice thereof to be effected not later than sixty days after the execution of such assignment.

D. Any contract or agreement entered into after January 1, 1977, to purchase or lease an unimproved lot or parcel may be rescinded by the purchaser without cause of any kind by sending or delivering written notice of rescission by midnight of the seventh calendar day following the day on which the purchaser or prospective purchaser has executed such contract or agreement. The subdivider shall clearly and conspicuously disclose, in accordance with regulations adopted by the commissioner, the right to rescind provided for in this subsection and shall provide, in accordance with regulations adopted by the commissioner, an adequate opportunity to exercise the right to rescission within the time limit set forth in this subsection. The commissioner may adopt regulations to exempt commercial and industrial subdivisions from such requirements.

E. If a buyer of an unimproved lot or parcel has not inspected the lot or parcel prior to the execution of the purchase agreement, the buyer shall have a six-month period after the execution of the purchase agreement to inspect the lot or parcel and at the time of the inspection have the right to unilaterally rescind the purchase agreement. At the time of inspection the buyer must sign an affidavit stating that he has inspected the lot, and at the request of the commissioner, such affidavit may be required to be filed with the department.

F. Only a bank, savings and loan association, or title insurance company doing business under the laws of this state or the United States or the state in which the subdivision is located, or a title insurance company wholly owned subsidiary or underwriting agent qualified under section 20-1580, or persons or firms authorized to receive escrows under the laws of this state or the state in which the subdivision is located may act as trustee under paragraph 3 of subsection A of this section. Nothing in this subsection extends to a firm or individual authority to act as a trustee unless such authority is otherwise provided by law.

G. The provisions of this section shall not apply to the sale of improved lots as defined by section 32-2101.

H. The provisions of this section shall not apply to the sale of cemetery lots or parcels within a cemetery which has been formed and approved pursuant to the provisions of this chapter.

§ 32-2185.02 Permanent access to subdivided land; rescindable sales

A. No subdivided land may be sold without provision for permanent access to the land over terrain which may be traversed by conventional motor vehicle unless such provision is waived by the commissioner.

B. Any sale of subdivided land which is without permanent access is rescindable by the purchaser. An action by the purchaser to rescind such transaction shall be brought within three years of the date of execution of the real estate sales contract by the purchaser.

§ 32-2185.03 Deposit of fees

All fees and earned expense collected under this chapter shall be deposited in the state general fund unless otherwise prescribed by law.

§ 32-2185.06 Contract disclosures; contract disclaimers

All agreements and contracts for the purchase or lease of subdivided land from a subdivider, owner or agent shall clearly and conspicuously disclose, in accordance with regulations adopted by the commissioner, the nature of the document, the purchaser's right to receive a copy of the public report and, in the case of unimproved lots or parcels not exempted by regulation pursuant to section 32-2185.01, the purchaser's right to rescind the agreement as provided in section 32-2185.01. Any contract, agreement or lease which fails to make disclosures pursuant to this section shall not be enforceable against the purchaser. If the transaction involves a lot or parcel offered for present or future residential use, the contract, agreement or lease shall not waive or disclaim liability for prior material representations relied upon by the purchaser made by the seller and such seller's agents concerning the subdivision and lot or parcel involved, and any provision attempting to waive or disclaim liability is void.

§ 32-2185.07 Jurisdiction

The commissioner shall not be denied jurisdiction over any person subject to the provisions of this article because of similar jurisdiction over such person by any other agency or the applicability to such person of any regulation prescribed pursuant to any other provision of law.

§ 32-2185.08 Recordable forms of contracts

Each purchaser of subdivided land under a contract as defined in section 33-741 shall be provided with a copy in recordable form of the contract on its execution by the purchaser and seller.

§ 32-2185.09 Civil penalties; limitation

A. A subdivider or agent who is subject to the jurisdiction of the department, who violates this chapter or any rule adopted or order issued by the commissioner or who engages in any unlawful practices defined in section 44-1522 with respect to the sale or lease of subdivided lands may be assessed a civil penalty by the commissioner, after a hearing, in an amount not to exceed $2,000 for each infraction. An infraction that concerns more than one lot in a subdivision is a single infraction for the purposes of this section.

B. A proceeding for imposition of a civil penalty or for suspension or revocation of a license for a violation of this article or any rule adopted or order issued by the commissioner must be commenced within five years of actual discovery by the department or discovery that should have occurred with the exercise of reasonable diligence by the department.

C. A subdivider who sells or leases in this state any lots, parcels or fractional interest in a subdivision without first obtaining a public report from the commissioner except as provided in section 32-2181.01 or 32-2181.02 for a lot or lots created from and after December 31, 2008 and on an order issued by the commissioner may be assessed a civil penalty by the commissioner, after a hearing, in an amount not to exceed $5,000 for each infraction. A proceeding for the imposition of a civil penalty or suspension or revocation of a license for a violation of this subsection or any rule adopted or order issued by the commissioner must be commenced within five years after actual discovery by the department or discovery that should have occurred with the exercise of reasonable diligence by the department.

Article 5 Real Estate Recovery Fund

§ 32-2186 Real estate recovery fund; liability limits; definitions

A. The commissioner shall establish and maintain a real estate recovery fund for the benefit of any person aggrieved by any act, representation, transaction or conduct of a licensed real estate or cemetery broker or real estate or cemetery salesperson that violates this chapter or the rules adopted pursuant to this chapter. The fund shall only pay for a loss that is an actual and direct out-of-pocket loss to the aggrieved person directly arising out of the real estate or cemetery transaction, including reasonable attorney fees and court costs, in which the licensee either:

1. Performed acts that required a real estate or cemetery license pursuant to this chapter.

2. Engaged in fraud or misrepresentation while acting as a principal in the purchase or sale of real property and the aggrieved person relied on the broker's or salesperson's licensed status.

B. The fund's liability shall not exceed:

1. Thirty thousand dollars for each transaction, regardless of the number of persons aggrieved or the number of licensees or parcels of real estate involved.

2. Ninety thousand dollars for each licensee.

C. The liability of the fund for the acts of a licensed real estate or cemetery broker or real estate or cemetery salesperson is terminated upon the issuance of orders authorizing payments from the fund in an aggregate amount as prescribed by subsection B of this section.

D. A licensee acting as a principal or agent in a real estate transaction has no claim against the fund, including marital communities, corporations, limited liability companies and partnerships in which the licensee is a principal, member, general partner, officer or director, or those entities in which the licensee holds a direct or indirect interest of at least ten per cent.

E. The fund is liable to pay only against the license of a natural person, not on that of a corporation, a partnership or any other fictitious entity.

F. The fund is liable to pay only for damages arising out of a transaction in which the defendant licensee performed acts for which a real estate or cemetery license was required or when the defendant licensee, while acting as principal in the purchase or sale of real property, engaged in fraud or misrepresentation and the aggrieved person was harmed due to reliance on the defendant's licensed status.

G. The fund is not liable for damages or losses resulting from or caused by:

1. Speculation, including lost profits and other unrealized losses.

2. Transactions for property that is located outside of this state.

3. Loans, notes, limited partnerships or other securities, regardless of whether the loss was caused by an investment in or was secured by real property.

4. A judgment entered against a bonding company if the bonding company is not a principal in the underlying real estate transaction.

5. A tenant's conduct or neglect.

6. Vandalism.

7. Natural causes.

8. Punitive damages.

9. Postjudgment interest.

10. Undocumented transactions or losses.

H. In this article, unless the context otherwise requires:

1. "Judgment" means either:

(a) A final judgment in a court of competent jurisdiction.

(b) A criminal restitution order issued pursuant to section 13-603 or 18 United States Code section 3663.

(c) An arbitration award that includes findings of fact and conclusions of law, that has been confirmed and reduced to judgment pursuant to section 12-133 and that was rendered according to title 12 and the rules of the American arbitration association or another recognized arbitration body.

2. "Judgment debtor" means any defendant under this article who is the subject of a judgment.

§ 32-2187 Payments to real estate recovery fund

A. In addition to any other fees, payments shall be made to the real estate recovery fund on application by any person, as follows:

1. For an original real estate or cemetery broker's license, twenty dollars.

2. For an original real estate or cemetery salesperson's license, ten dollars.

B. If, on June 30 of any year, the balance remaining in the real estate recovery fund is less than six hundred thousand dollars, every broker when renewing a real estate or cemetery license during the following license year shall pay, in addition to the license renewal fee, a fee of twenty dollars for deposit in the real estate recovery fund, and every salesperson when renewing a real estate or cemetery license during such year shall pay, in addition to the license renewal fee, a fee of ten dollars for deposit in the real estate recovery fund.

§ 32-2188 Statute of limitations; service of summons; application for payment; insufficient monies; definition

A. An action for a judgment that subsequently results in an order for payment from the real estate recovery fund shall not be started later than five years from the accrual of the cause of action.

B. If an aggrieved person commences an action for a judgment that may result in an order for payment from the real estate recovery fund, and the defendant licensee cannot be served process personally in this state, the summons may be served by the alternative methods of service provided for by the Arizona rules of civil procedure, including service by publication. A judgment that complies with the provisions of this section and that was obtained after service by publication only applies to and is enforceable against the real estate recovery fund. The department may intervene in and defend any such action.

C. An aggrieved person may apply to the department for payment from the real estate recovery fund after the aggrieved person obtains a judgment against a real estate or cemetery broker or salesperson based on the licensee's act, representation, transaction or conduct in violation of this chapter or the rules adopted pursuant to this chapter. The claimant must file the original application, including appendices, within two years after the termination of all proceedings, reviews and appeals connected with the judgment. The commissioner, in the commissioner's sole discretion, may waive the two-year application deadline if the commissioner determines that the waiver best serves the public interest. Delivery of the application must be by personal service or by certified mail, return receipt requested.

D. The application must be within the limitations prescribed in section 32-2186 for the amount unpaid on the judgment that represents the claimant's actual and direct loss on the transaction.

E. The department shall prescribe and supply an application form that includes detailed instructions with respect to documentary evidence, pleadings, court rulings, the products of discovery in the underlying litigation and notice requirements to the judgment debtor under section 32-2188.01. The claimant must submit the claim on an application form supplied by the department. The application must include:

1. The claimant's name and address.

2. If the claimant is represented by an attorney, the attorney's name, business address and telephone number.

3. The judgment debtor's name and address or, if unknown, the names and addresses of persons who may know the judgment debtor's present location.

4. A detailed narrative statement of the facts explaining the allegations of the complaint on which the underlying judgment is based, with a copy of the contracts, receipts and other documents from the transaction, the last amended complaint, all existing recorded judgments, documentation of actual and direct out-of-pocket losses and any offsetting payment received and all collection efforts attempted.

5. The identification of the judgment, the amount of the claim and an explanation of its computation, including an itemized list of actual and compensatory damages awarded and claimed.

6. For the purpose of an application that is not based on a criminal restitution order, a statement by the claimant, signed under penalty of perjury, that the complaint on which the underlying judgment is based was prosecuted conscientiously and in good faith. For the purposes of this paragraph, "conscientiously and in good faith" means that all of the following apply:

(a) No party that was potentially liable to the claimant in the underlying transaction was intentionally and without good cause omitted from the complaint.

(b) No party named in the complaint who otherwise reasonably appeared capable of responding in damages was intentionally and without good cause dismissed from the complaint.

(c) The claimant employed no other procedural means contrary to the diligent prosecution of the complaint in order to seek to qualify for the recovery fund.

7. For the purpose of an application that is based on a criminal restitution order, all of the following statements by the claimant, signed under penalty of perjury:

(a) The claimant has not intentionally and without good cause failed to pursue any person potentially liable to the claimant in the underlying transaction other than a defendant who is the subject of a criminal restitution order.

(b) The claimant has not intentionally and without good cause failed to pursue in a civil action for damages all persons potentially liable to the claimant in the underlying transaction who otherwise reasonably appeared capable of responding in damages other than a defendant who is the subject of a criminal restitution order.

(c) The claimant employed no other procedural means contrary to the diligent prosecution of the complaint in order to seek to qualify for the recovery fund.

8. The following statements, signed under penalty of perjury, and information from the claimant:

(a) The claimant is not a spouse of the judgment debtor or a personal representative of the spouse.

(b) The claimant has complied with all of the requirements of this article.

(c) The judgment underlying the claim meets the requirements of this article.

(d) The claimant has recorded a certified copy of the superior court judgment or transcript of judgment pursuant to sections 33-961 and 33-962 in the county where the judgment was obtained and in the counties where all judgment debtors reside and has provided a copy of the recorded judgment to the commissioner.

(e) The claimant has caused the judgment debtor to make discovery under oath, pursuant to section 12-1631, concerning the debtor's property.

(f) The claimant has caused a writ of execution to be issued on the judgment and the officer executing the writ has made a return showing either:

(i) That no personal or real property of the judgment debtor liable to be levied on in satisfaction of the judgment could be found, sold or applied.

(ii) That the amount realized on the sale of the property, or as much of the property that was found, under the execution was insufficient to satisfy the judgment.

(g) The claimant has caused a writ of garnishment to be issued to each known employer of the judgment debtor ascertained by the claimant, that each garnishee-defendant has complied with the respective writ and any judgment or order resulting from the writ and that the amount realized from all judgments against the garnishee-defendants was insufficient to satisfy the balance due on the judgment.

(h) The claimant has deducted the following amounts from the actual or compensatory damages awarded by the court:

(i) Any amount recovered or anticipated from the judgment debtor or debtors.

(ii) Any amount recovered through collection efforts undertaken pursuant to subdivisions (d) through (g) of this paragraph and including an itemized valuation of the assets discovered and amounts applied.

(iii) Any amount recovered or anticipated from bonding, insurance or title companies, including recovery of punitive damages.

(iv) Any amount recovered or anticipated from in-court or out-of-court settlements.

(v) Any amount of tax benefits accrued or taken as deductions on federal, state or local income tax returns.

F. If the claim is based on a judgment against a salesperson or broker and the claimant has not obtained a judgment against the salesperson's or broker's employing broker, if any, or has not diligently pursued the assets of the employing broker, the department shall deny the claim for failure to diligently pursue the assets of all other persons liable to the claimant in the transaction unless the claimant demonstrates, by clear and convincing evidence, that either:

1. The salesperson or broker was not employed by a broker at the time of the transaction.

2. The salesperson's or broker's employing broker would not have been liable to the claimant because the salesperson or broker acted outside the scope of employment in the transaction.

G. The commissioner, at the commissioner's sole discretion, may waive compliance with one or more of the requirements enumerated in subsection E, paragraph 8 or subsection F of this section if the claim is based on an award pursuant to a criminal restitution order or if the commissioner is satisfied that the claimant has taken all reasonable steps to collect the amount of the judgment or the unsatisfied part of the judgment from all judgment debtors but has been unable to collect.

H. If the commissioner finds it is likely that the total remaining liability of the recovery fund is insufficient to pay in full the valid claims of all aggrieved persons who may have claims against any one licensee, the commissioner may petition the court to initiate a proration proceeding. The court shall grant the petition and order a hearing to distribute the total remaining liability of the fund among the applicants in the ratio that their respective claims bear to the aggregate of the valid claims or in such other manner as the court deems equitable. The commissioner or any party may file a proposed plan for equitable distribution of the available monies. The distribution of monies shall be among the persons entitled to share them, without regard to the order of priority in which their respective judgments may have been obtained or their respective applications may have been filed. The court may require all applicants and prospective applicants against one licensee to be joined in one action, to the end that the respective rights of all the applicants to the recovery fund may be equitably adjudicated and settled. The court shall not include in the claims for proration the claim of any person who has not, within ninety days after the court has entered the order for proration, filed a complaint with the court, served the licensee and provided written notice of the claim to the commissioner. The liability of the fund on any application affected by a proration proceeding is based on the limits in effect on the date when the last application for payment is filed. The court may refuse to consider or award prorated recovery to any person who fails to expeditiously prosecute a claim against the licensee or promptly file an application for payment and submit supporting documentation as required by this article.

I. If the commissioner pays from the real estate recovery fund any amount in settlement of an applicant's claim or toward satisfaction of a judgment against a licensed broker, designated broker for a corporation or salesperson, the license of the broker, designated broker for a corporation or salesperson shall be automatically terminated upon the issuance of an order authorizing payment from the real estate recovery fund. A broker, designated broker for a corporation or salesperson is not eligible to receive a new license until the licensee has repaid in full, plus interest at the rate provided by section 44-1201, the amount paid from the real estate recovery fund on the licensee's account and has provided evidence to the commissioner that the judgment has been fully satisfied.

J. If, at any time, the money deposited in the real estate recovery fund is insufficient to satisfy any duly authorized claim or portion of a claim, the commissioner shall, when sufficient money has been deposited in the real estate recovery fund, satisfy the unpaid claims or portions of claims, in the order that the claims or portions of claims were originally filed, plus accumulated interest at the rate of four per cent a year.

K. For the purposes of this section, "complaint" means the facts of the transaction on which the judgment is based.

§ 32-2188.01 Notice of claim to judgment debtor; response

A. Within the same time prescribed by section 32-2188, subsection C for applying for payment from the real estate recovery fund, an aggrieved party who applies for payment shall serve notice of the claim on the judgment debtor, together with a copy of the application. The notice shall be in the following form:

Notice

Based on a judgment against you in favor of (enter name of claimant), application is being made to the Arizona state real estate department for payment from the real estate recovery fund.

If payment is made from the real estate recovery fund, all licenses and license rights that you have under the Arizona real estate law will be automatically terminated on the date of payment and may only be reinstated pursuant to section 32-2131, subsection A, paragraph 3, Arizona Revised Statutes, on a showing that 1) the real estate recovery fund has been reimbursed for the amount paid plus interest at the current legal rate, 2) the underlying judgment has been fully satisfied and 3) you have filed an original application for a license.

If you wish to contest payment from the real estate recovery fund, you must file a written response to the application. The Arizona state real estate commissioner must receive your response at (address) within 35 calendar days after the date this notice is [mailed, delivered, first published]. You must also send a copy of the response to the claimant. If you fail to respond as required, you waive your right to present your objections to payment.

B. If the judgment debtor holds a current license issued by the department, the notice and copy of the application may be served by certified mail, return receipt requested, addressed to the judgment debtor's latest business or residence address on file with the department. If the judgment debtor does not hold a current license and if personal delivery cannot be effected by exercising reasonable diligence, the claimant must publish the notice once a week for two consecutive weeks in a newspaper of general circulation in the county in which the judgment debtor was last known to reside.

C. If the judgment debtor fails to file a written response to the application with the department within thirty-five calendar days after service under subsection B of this section or after the first publication of the notice, the judgment debtor is not thereafter entitled to notice of any action taken or proposed to be taken by the commissioner with respect to the claim.

§ 32-2188.02 Correction of deficiencies in the application

A. If the commissioner determines that a claimant’s application fails to comply substantially with the requirements of section 32-2188 or rules adopted pursuant to this chapter, the commissioner, within thirty calendar days after receiving the application, shall mail an itemized list of deficiencies to the claimant. For the purposes of this subsection, "comply substantially" means filing with the department the documents that are minimally necessary to process a claim, including at least a certified copy of the judgment, legible copies of documents establishing the underlying transaction and amounts of losses suffered and a statement concerning amounts recovered from or on behalf of the judgment debtor.

B. The claimant must respond within sixty calendar days after receiving the list of deficiencies by providing the information identified by the commissioner. If the claimant fails to correct the deficiencies within sixty calendar days, the department shall close the file unless the claimant requests an extension in writing. A claimant whose file has been closed may submit a new application as provided by section 32-2188.

C. The deadline prescribed by section 32-2188.04 for the commissioner to make a decision on the application is suspended from the date the commissioner mails the list of deficiencies to the applicant until the date the department receives the requested information.

§ 32-2188.03 Investigation and discovery

In considering and investigating an application, the department may use all appropriate means of investigation and discovery that are available pursuant to this chapter.

§ 32-2188.04 Final decision and order on claim; notice

A. The commissioner shall make a final written decision and order on a claim within ninety calendar days after receiving a completed application except in the following cases:

1. A proration hearing is pending under section 32-2188, subsection H.

2. An application is deficient or fails to comply substantially with the requirements of section 32-2188 or rules adopted pursuant to this chapter as determined pursuant to section 32-2188.02. The ninety day time period begins under this subsection when the department receives an application that is substantially complete.

3. The claimant agrees in writing to extend the time for making a decision.

B. If the commissioner fails to render a written decision and order on a claim within ninety calendar days, or within an extended period of time provided under subsection A of this section, the claim is considered to be approved on the day following the final day for rendering the decision.

C. The commissioner may approve or deny an application or may enter into a compromise with the claimant to pay less in settlement than the full amount of the claim. If the claimant refuses to accept a settlement offered by the commissioner, the commissioner shall deny the claim.

D. The commissioner shall give notice of a decision and order with respect to the claim to the claimant and to any judgment debtor who has filed a timely response to the claim pursuant to section 32-2188.01 as follows:

1. If the commissioner denies the application, the notice shall include the following:

The claimant's application has been denied. If the claimant wishes to pursue the application in court, the claimant must file the application in the court in which the underlying judgment was entered within six months after receiving this notice, pursuant to section 32-2188.05, Arizona Revised Statutes.

2. If the commissioner's decision is to make a payment to the claimant out of the real estate recovery fund, the following notice shall be given to the judgment debtor with a copy of the decision and order of the commissioner:

The decision of the Arizona state real estate commissioner on the claim of (name of claimant) is to pay $_________ from the real estate recovery fund. A copy of that decision and order is enclosed.

Pursuant to section 32-2188, subsection I, Arizona Revised Statutes, all of your licenses and license rights under title 32, chapter 20, Arizona Revised Statutes, will be terminated effective on the date of the payment, and you will not be eligible to apply for reinstatement of any of those licenses until you have satisfied the underlying judgment and reimbursed the real estate recovery fund for this payment, including interest at the prevailing legal rate.

If you desire a judicial review of the commissioner's decision and order or the termination of your licenses and license rights, you may petition the superior court, in the county in which the judgment that is the basis of this claim was rendered, for a judicial review. To be timely, you must file the petition with the court within 30 calendar days after receiving this notice.

§ 32-2188.05 Claimant's right to appeal denial of claim; service of notice of appeal; response; failure to file response

A. A claimant whose application is denied pursuant to section 32-2188.04 may file within six months after receiving notice of a denial of the claim a verified application in the court in which judgment was entered in the claimant's favor for an order directing payment out of the real estate recovery fund based on the grounds set forth in the claimant's application to the commissioner.

B. The claimant must serve a copy of the verified application on the commissioner and on the judgment debtor and file a certificate or affidavit of service with the court. Service on the commissioner shall be made by certified mail addressed to the commissioner. Service on a judgment debtor shall be made according to section 32-2188.01 and shall include the following notice:

Notice

An application has been filed with the court for a payment from the real estate recovery fund that was previously denied by the Arizona state real estate commissioner.

If the court orders a payment from the real estate recovery fund, all of your licenses and license rights under title 32, chapter 20, Arizona Revised Statutes, will be automatically terminated.

If you wish to defend in court against this claim, you must file a written response with the court within 30 calendar days after you are served with a copy of the application. If you fail to file a written response, you waive your right to defend against the claim.

C. The commissioner and the judgment debtor each must file a written response within thirty calendar days after being served with the application under subsection B of this section. The court shall thereafter set the matter for hearing on the petition of the claimant. The court shall grant a request of the commissioner for a continuance of as much as thirty calendar days and, on a showing of good cause by any party, may continue the hearing for such time as the court considers to be appropriate.

D. At the hearing, the claimant must establish compliance with the requirements of section 32-2188.

E. If the judgment debtor fails to file a written response to the application, the commissioner may compromise or settle the claim at any time during the court proceedings and, on joint petition of the applicant and the commissioner, the court shall issue an order directing payment out of the real estate recovery fund.

§ 32-2189 Management of fund

A. The sums received by the commissioner pursuant to any provisions of this article shall be deposited, pursuant to sections 35-146 and 35-147, in the real estate recovery fund and shall be held by the commissioner in trust for carrying out the purposes of this article.

B. On notice from the commissioner, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

C. Notwithstanding any other law, the commissioner may expend interest monies from the fund necessary to increase public awareness of the fund, not to exceed fifty thousand dollars in any fiscal year.

§ 32-2191 Commissioner's standing in court

The commissioner may enter an appearance, file an answer, appear at the court hearing, defend the action or take whatever other action the commissioner considers appropriate on the behalf and in the name of the real estate recovery fund and take recourse through any appropriate method of review on behalf of, and in the name of, the real estate recovery fund.

§ 32-2192 Subrogation of rights; collection

A. Before receiving payment from the fund, a claimant must complete and execute, as judgment creditor, an assignment of judgment lien and notice of subrogation and assignment of rights to the claimant’s judgment on a form provided by the department.

B. If the commissioner has paid from the real estate recovery fund any sum to the judgment creditor, the commissioner shall be subrogated to all of the rights of the judgment creditor and the judgment creditor shall assign all the right, title and interest in the judgment to the commissioner. The commissioner may record the assignment of judgment lien and notice of subrogation and assignment of rights. Any amount and interest so recovered by the commissioner on the judgment shall be deposited to the fund.

C. If the commissioner is subrogated to a claimant’s rights as judgment creditor, the claimant shall not file a full or partial satisfaction of judgment without the commissioner’s prior written consent.

D. The attorney general shall bring any actions to recover amounts paid from the fund including interest, attorney fees and costs of collection pursuant to this chapter in the name of this state in the superior court in the county in which the violation occurred or in a county in which the commissioner maintains an office. A certified copy of a commissioner's order requiring payment from the fund may be filed in the office of the clerk of the superior court. The clerk shall treat the commissioner's order in the same manner as a judgment of the superior court. A commissioner's order so filed has the same effect, and may be recorded, enforced or satisfied in a similar manner, as a judgment of the superior court. No filing fee is required under this subsection.

§ 32-2193 Waiver of rights

The failure of an aggrieved person to comply with all of the provisions of this article shall constitute a waiver of any rights hereunder.

§ 32-2193.01 Effect of article on disciplinary action

This article does not limit the authority of the commissioner to take disciplinary action against any licensee for a violation of this chapter or of the rules adopted pursuant to this chapter. The repayment in full of all obligations to the fund by any licensee does not nullify or modify the effect of any other disciplinary proceeding brought pursuant to this chapter or the rules adopted pursuant to this chapter.

§ 32-2193.02 Surety bond requirement; form; cancellation; effective date; certificate of deposit

A. In addition to any other fees assessed under this chapter, the commissioner may require that a real estate or cemetery licensee or person applying for a license or renewal of a license issued to real estate or cemetery brokers or salespersons under this chapter post a surety bond if any of the following apply:

1. The licensee or applicant has been found in violation of any of the provisions of this chapter or the rules of the commissioner pertaining to this chapter.

2. The licensee or applicant has been convicted in a court of competent jurisdiction of a felony or misdemeanor involving a transaction in real estate, or of which fraud is an essential element, or arising out of the conduct of any business in real estate, securities or mail fraud, or securities registration violations.

3. The licensee or applicant has had an administrative order entered against him or it by a real estate regulatory agency or security regulatory agency.

B. The bond required by subsection A of this section shall be in a form acceptable to the commissioner and shall be executed by the applicant or licensee as principal with a corporation duly authorized to transact surety business in this state. Evidence of a surety bond shall be submitted to the commissioner in accordance with rules adopted by the commissioner. The bond shall be in favor of this state and is subject to claims solely for actual damages including reasonable attorney's fees suffered by persons injured as described in section 32-2186. The amount and duration of the bond shall be as the commissioner deems necessary for the protection of the public, but the principal amount of the bond shall be not more than one hundred thousand dollars and its duration shall not exceed five years.

C. On receipt by the commissioner of notice to cancel a bond by any surety, the commissioner shall immediately notify the licensee on the bond of the effective date of cancellation of the bond and the licensee shall furnish a like bond within thirty days after mailing of the notice by the commissioner or his license shall be suspended. Notice to the licensee shall be by certified mail addressed to the licensee's last address on file with the commissioner.

D. In lieu of posting a bond as set forth in this section, the applicant or licensee may post a certificate of deposit with the commissioner in accordance with the provisions of subsections A and B of this section.

Article 6 Organization and Regulation of Cemeteries

§ 32-2194 Exceptions

This chapter does not apply to any of the following:

1. Any religious corporation, church, religious society or denomination, a corporation sole administering temporalities of any church or religious society or denomination, or any cemetery organized, controlled and operated by any of them.

2. A private or municipal cemetery.

3. Any fraternal burial park not exceeding ten acres in area, established before July 2, 1963, in which the sale of burial spaces is restricted exclusively to its members.

4. The superintendent of the Arizona pioneers' home and the Arizona pioneers’ home cemetery.

§ 32-2194.01 Notice to commissioner of intention to sell cemetery property; exceptions; restrictions

A. Before offering cemetery plots for sale, the owner or agent shall notify the commissioner in writing and the notice shall contain:

1. The name and address of the owner. If the holder of any ownership interest in the cemetery is other than an individual, such as a corporation, partnership or trust, a statement naming the type of legal entity and listing the interest and the extent of such interest of each principal in the entity. For the purposes of this paragraph, "principal" means any person or entity having a ten per cent or more financial interest or, if the legal entity is a trust, each beneficiary of the trust holding a ten per cent or more beneficial interest.

2. The legal description and area of the lands.

3. A true statement of the condition of the title to the land, including all encumbrances on the land.

4. The terms and conditions on which it is intended to dispose of the land, together with copies of any real estate sales contract, conveyance, lease, assignment or other instrument intended to be used, and other information the owner or agent desires to present.

5. A map of the cemetery which has been filed in the office of the county recorder in the county in which the cemetery is located.

6. A comprehensive statement describing the land on and the locality in which the cemetery is located.

7. A true statement of the use or uses for which the proposed cemetery will be offered.

8. A true statement of the provisions, if any, limiting the use of the plots in the cemetery, together with copies of any restrictive covenants affecting all or part of the cemetery.

9. The name and business address of the designated broker selling within this state plots in the cemetery. If the designated broker is changed the cemetery shall advise the department in writing without the requirement of an amended filing.

10. A true statement of the approximate amount of indebtedness which is a lien on the cemetery or any part of the cemetery and which was or will be incurred to pay for the construction of any on-site or off-site improvement or other facilities.

11. A true statement or reasonable estimate, if applicable, of the amount of any indebtedness which has been or is proposed to be incurred by an existing or proposed special district, entity, taxing area or assessment district within the boundaries of which the cemetery or any part of the cemetery is located and any amounts which are to be obtained by ad valorem tax or assessment, or by a special assessment or tax on the cemetery or any part of the cemetery.

12. Proof of financial responsibility for completing the cemetery and its related facilities for its initial development.

13. A true statement of provisions made for financing any related facilities to be included. The statement shall include evidence of assurances for delivery of such facilities and a statement of the provisions, if any, for the continued maintenance of such facilities.

14. A true statement that the cemetery is not subject to any known flooding or drainage hazards.

15. A true statement of the nature of any improvements to be installed in the developed portion of the cemetery, the estimated schedule for completion and the estimated costs related to such improvements which shall be borne by the developed portion of the cemetery.

16. A true statement of the availability of department of health services approved water and sewage disposal facilities and other public utilities including electricity, gas and telephone facilities in the cemetery, the estimated schedule for their installation and the estimated costs related to such facilities and utilities which shall be borne by the cemetery.

17. If the subdivider is a subsidiary corporation, a true statement identifying the parent corporation and any cemeteries in this state in which the parent or any of its subsidiaries are or have been involved in the last five years.

18. Such other information and such other documents as the commissioner may reasonably require.

19. If the cemetery has been previously licensed in this state and the ownership or control of the cemetery has transferred, a statement from a certified public accountant certified pursuant to chapter 6 of this title, showing that all required funds have been deposited in the irrevocable trust fund and that only lawful withdrawals were made. An audit that meets generally accepted accounting standards shall be used by the certified public accountant to prepare the statement required by this paragraph.

B. The commissioner may require the owner or agent to supplement the notice of intention to develop a cemetery and may require the filing of periodic reports to update the information contained in the original notice of intention to develop a cemetery.

C. The conveyance of a plot in a cemetery does not limit the right of the purchaser or the purchaser's representative to appear and testify before any public body regarding changes or other official acts affecting the cemetery property. All contractual provisions which conflict with this subsection are deemed to be against public policy.

D. The commissioner by special order may exempt from any one or all of the provisions of this article certain cemeteries otherwise required to comply with this article on written petition and on a showing by the petitioner, satisfactory to the commissioner, that compliance with this article is not essential to the public interest or for the protection of buyers by reason of the special characteristics of the cemetery.

§ 32-2194.02 Examination by commissioner; fee

Before cemetery plots are offered for sale the commissioner shall examine the cemetery and shall make public his findings. The total cost of travel and subsistence expenses incurred by the department in the examination, in addition to the initial filing fee provided for in this section, shall be borne by the owner of the cemetery or his agent, on the basis of actual cost to the department. An initial filing fee of five hundred dollars or such lesser fee as determined by the commissioner shall accompany the written notification required in section 32-2194.01.

§ 32-2194.03 Issuance or denial of certificate of authority; voidable sale; order prohibiting sale; investigations by commissioner; public hearings; summary orders

A. After examination of a cemetery application, the commissioner, unless there are grounds for denial, shall issue a certificate of authority authorizing the sale in this state of cemetery plots within the cemetery. The commissioner shall notify the department of health services when the commissioner issues a certificate of authority pursuant to this section.

B. The commissioner may deny issuance of a certificate of authority on any of the following grounds:

1. The applicant fails to comply with this article or the rules of the commissioner pertaining to this article.

2. The sale of plots within the cemetery would constitute misrepresentation to or deceit or fraud of the purchasers.

3. The applicant has procured or attempted to procure a certificate of authority under this chapter for itself or another by fraud, misrepresentation or deceit or by filing an original or renewal application which is false or misleading.

4. The applicant is unable to deliver title or other interest contracted for.

5. The applicant is unable to demonstrate that adequate financial or other arrangements acceptable to the commissioner have been made for installation of all off-site and other cemetery facilities.

6. The applicant fails to show that the plots can be used for the purpose for which they are offered.

7. The applicant fails to provide in the contract or other writing the use or uses for which the plots are offered, together with any covenants or conditions relative to such plots.

8. The applicant fails to include in the contract the disclosure provisions required as provided by section 32-2194.04.

9. The owner, the agent, an officer, a director or partner, a trust beneficiary holding ten percent or more beneficial interest or, if a corporation, any stockholder owning ten percent or more of the stock in such corporation has:

(a) Been convicted of a felony or misdemeanor involving fraud or dishonesty or involving conduct of any business or a transaction in real estate, cemetery property, timeshare intervals or membership camping campgrounds or contracts.

(b) Been permanently or temporarily enjoined by order, judgment or decree from engaging in or continuing any conduct or practice in connection with the sale or purchase of real estate or cemetery property, timeshare intervals, membership camping contracts or campgrounds, or securities or involving consumer fraud or the racketeering laws of this state.

(c) Had an administrative order entered against the applicant by a real estate regulatory agency or security regulatory agency.

(d) Had an adverse decision or judgment entered against the applicant involving fraud or dishonesty or involving the conduct of any business in or a transaction in real estate, cemetery property, timeshare intervals or membership camping campgrounds or contracts.

(e) Disregarded or violated any of the provisions of this chapter or the rules of the commissioner pertaining to this chapter.

(f) Participated in, operated or held an interest in any entity to which subdivision (b), (c), (d) or (e) of this paragraph applies.

10. The applicant fails to satisfy the commissioner that sufficient land has been dedicated for the operation of the cemetery to make it financially secure with respect to the trust fund requirements of this article.

C. A cemetery owner or operator shall not sell or offer for sale any plots without first obtaining a certificate of authority as provided in this section. Any sale of plots before the issuance of the certificate of authority is voidable by the purchaser. An action by the purchaser to void such a transaction shall be brought within three years after the date of execution of the purchase agreement by the purchaser. In any such action, the prevailing party is entitled to reasonable attorney fees as determined by the court.

D. An applicant objecting to the denial of a certificate of authority by the commissioner, within thirty days after receipt of the order of denial, may file a written request for a hearing. The commissioner shall hold the hearing within twenty-five days after the request unless the party requesting the hearing requests a postponement. If the hearing is not held within twenty-five days after the request for a hearing is received, plus the period of any such postponement, or if a proposed decision is not rendered within forty-five days after submission, the order of denial shall be rescinded and a certificate of authority shall be issued.

E. On the commissioner's own motion or if the commissioner has received a complaint and has satisfactory evidence that the cemetery owner or agent is violating any provision of this article or the rules of the commissioner or has engaged in any unlawful practice as defined in section 44-1522 with respect to the sale of cemetery plots or deviated from the conditions under which the certificate of authority was issued, the commissioner may investigate the cemetery project and examine the books and records of the cemetery owner or agent. For the purpose of examination, the cemetery owner or agent shall keep and maintain records of all sales transactions and monies the cemetery owner or agent received at the broker's main office or at an off-site storage location in this state if the owner or agent provides prior written notification of the street address of the off-site storage location to the department. The cemetery owner or agent shall make the records accessible to the commissioner on reasonable notice and demand.

F. On the commissioner's own motion or if the commissioner has received a complaint and has satisfactory evidence that any of the grounds exist as provided in subsection B of this section or that any person has engaged in any unlawful practice as defined in section 44-1522 with respect to the sale of cemetery plots or has deviated from the conditions under which the certificate of authority was issued, before or after the commissioner issues the certificate of authority as provided in this section, the commissioner may conduct an investigation of such matter, issue a summary order as provided in section 32-2157, or hold a public hearing and, after the hearing, may issue such order or orders as the commissioner deems necessary to protect the public interest and ensure compliance with the law, rules or certificate of authority, or the commissioner may bring an action in any court of competent jurisdiction against the person to enjoin the person from continuing such a violation or engaging in a violation or doing any act or acts in furtherance of a violation. The court may make such orders or judgments, including the appointment of a receiver, that may be necessary to prevent the use or employment by a person of any unlawful practices or that may be necessary to restore to any person in interest any monies or property, real or personal, that may have been acquired by means of any practice declared to be unlawful in this article.

G. If it appears to the commissioner that a person has engaged in or is engaging in a practice declared to be unlawful by this article and that the person is concealing assets or has made arrangements to conceal assets or is about to leave this state, the commissioner may apply to the superior court, without notice, for an order appointing a receiver of the assets of the person or for a writ of ne exeat, or both.

H. The court on receipt of an application for the appointment of a receiver or for a writ of ne exeat, or both, shall examine the verified application of the commissioner and such other evidence that the commissioner may present to the court. If satisfied that the interests of the public require the appointment of a receiver or the issuance of a writ of ne exeat without notice, the court shall issue an order appointing the receiver or issue the writ, or both. If the court determines that the interests of the public will not be harmed by the giving of notice, the court shall set a time for a hearing and require that the notice be given as the court deems satisfactory.

I. If the court appoints a receiver without notice, the court shall further direct that a copy of the order appointing a receiver be served on the person engaged in or engaging in a practice declared to be unlawful under this article by delivering the order to the last address of the person that is on file with the state real estate department. The order shall inform the person that the person has the right to request a hearing within ten days after the date of the order, and if requested, the hearing shall be held within thirty days after the date of the order.

§ 32-2194.04 Contract disclosures; contract disclaimers

A. In all agreements and contracts for the sale of cemetery plots from a cemetery, a broker or agent shall clearly and conspicuously disclose the following information:

1. The nature of the document, including grave site designation.

2. The nature of the cemetery, whether endowed or not under the provisions of this article.

3. That the cemetery operator has received a certificate of authority from the department pursuant to section 32-2194.03 and that these records are available for examination at the department at the request of the purchaser.

4. A provision that all cemetery improvements for the area developed as defined in the application shall be completed by the date indicated in the application.

5. Whether the purchaser is subject to a fee for the following known services or goods associated with future plot use:

(a) Opening or closing interment.

(b) A marker, with or without a setting.

(c) A vault liner purchased with the grave site.

6. Whether a marker or vault may be purchased separately from another vendor.

7. The policy of the cemetery regarding cancellations of contracts, including whether the cemetery issues refunds under canceled contracts.

B. An agreement or contract which fails to make the disclosures required in subsection A of this section is unenforceable against the purchaser.

§ 32-2194.05 Advertising material; contents; order prohibiting use

A. Within ten days after request by the commissioner, the cemetery owner or agent shall file with the commissioner a copy of any promotional and advertising material of any kind used directly or indirectly in connection with the sale of cemetery plots or any material changes in the material.

B. No advertising, communication or sales literature of any kind, including oral statements by salespersons or other persons, may contain:

1. Any untrue statement of material fact or any omission of material fact which would make the statement misleading in light of the circumstances under which the statement was made.

2. Any statement, representation or pictorial presentation of proposed improvements or nonexistent scenes without clearly indicating that the improvements are proposed and the scenes do not exist.

C. All advertising and sales literature shall be consistent with the information contained in the notice of intention pursuant to section 32-2194.01 and shall otherwise comply with the rules of the commissioner.

D. If it appears to the commissioner that any person is or has engaged in advertising or promotional practices in violation of this article, the commissioner may hold a hearing as a contested case under the provisions of title 41, chapter 6, article 10 and issue such order or orders as he deems necessary to protect the public interest or the commissioner may bring an action in any court of competent jurisdiction against the person to enjoin the person from continuing the violation.

E. The commissioner may adopt rules and guidelines necessary to protect the public interest and to assure that all advertising and promotional practices with respect to land subject to the provisions of this article are not false or misleading.

F. It is unlawful for any owner or agent of a cemetery or other person with intent directly or indirectly to sell plots subject to the provisions of this article to authorize, use, direct or aid in any advertising, communication, sales literature or promotional practice which violates this section.

G. Nothing in this section applies to the owner or publisher of a newspaper, magazine or other publication of printed matter in which such advertisement appears or to the owner or operator of a radio or television station which disseminates such advertisement if the owner, publisher or operator has no knowledge of the intent, design or purpose of the advertiser.

§ 32-2194.06 Records of transactions

A. Cemeteries shall keep on file records of all documents in connection with all cemetery plot transactions handled by or through them. The records shall include but are not limited to:

1. All sales contracts.

2. Sales contract payment ledgers.

3. Certificates of burial rights.

4. All ledgers or books showing all receipts, disbursements or adjustments.

5. Records of plats and maps.

6. Such other information as the commissioner may reasonably require.

B. Each cemetery broker is responsible for maintenance of all documents used in connection with all cemetery plot transactions while in the employment of a cemetery. The records shall be open at all reasonable times for inspection by the commissioner or the commissioner's representatives. The records of each transaction shall be kept by the cemetery for a period of five years after payment in full of the transaction at the broker's main office or at an off-site storage location in this state if the owner or agent provides prior written notification of the street address of the off-site storage location to the department.

§ 32-2194.07 Recording of actions

A. If the commissioner issues a cease and desist order, obtains a court order enjoining further sales, issues an order of prohibition or suspends approval of a cemetery, the action shall be recorded in the office of the county recorder in any county in which the cemetery property is located.

B. If any of the orders which require recording in subsection A are revoked, an order of release shall be recorded in the same manner.

§ 32-2194.08 Administrative penalties

A. Any cemetery owner, operator, broker or salesman subject to the jurisdiction of the department who violates any provision of this chapter or any rule or order promulgated by the commissioner, who deviates substantially from the provisions under which a certificate of authority was issued or who engages in any unlawful practices defined in section 44-1522 with respect to the sale of cemetery plots may be assessed a civil penalty by the commissioner, after a hearing, in an amount of not to exceed one thousand dollars for each infraction.

B. Actions to recover penalties pursuant to this section shall be brought by the attorney general in the name of this state in the superior court in the county in which the violation occurred or in a county in which the commissioner maintains an office.

§ 32-2194.09 Civil liabilities

A. If any part of the notice of intention filed pursuant to section 32-2194.01 contains an untrue statement of a material fact or omits a material fact required to be stated in such notice, the owner or agent is liable as provided in this article to any person who acquires a plot in the cemetery.

B. A cemetery owner, operator, broker or salesman who sells a cemetery plot in violation of this article is liable to the purchaser of such plot as provided in this article.

C. It is unlawful for any cemetery owner, operator, broker or salesman in selling or offering to sell any cemetery plot to:

1. Employ any device, scheme or artifice to defraud.

2. Obtain money or property by means of a material misrepresentation with respect to any information included in the notice of intention or the certificate of authority with respect to any other information pertinent to the plot on which the purchaser relies.

3. Engage in any transaction, practice or course of business which operates or would operate as a fraud or deceit on a purchaser.

D. Damages in any suit brought pursuant to this section shall be the difference between the amount paid for the plot together with the reasonable cost of improvements to such plot and whichever of the following is the smallest:

1. The value of the plot and improvements as of the time the suit was brought.

2. The price at which the plot was disposed of in a bona fide market transaction before suit.

3. The price at which the plot was disposed of in a bona fide market transaction after suit was brought but before judgment.

E. In an action in which a violation of this section is established the purchaser is also entitled to recover reasonable attorney fees as determined by the court. If a violation is not established, the court, in its discretion, may award reasonable attorney fees to the defendant.

F. Every person who becomes liable to make any payment pursuant to this section may recover contribution as in cases of contract from any person who, if sued separately, would have been liable to make the same payment.

G. In no case shall the amount recoverable pursuant to this section exceed the sum of the purchase price of the plot, the reasonable cost of improvements installed by the purchaser and reasonable court costs and attorney fees.

H. Nothing contained in this section precludes any other remedies that may exist at law or in equity.

I. No action may be maintained to enforce any liability created pursuant to subsection A or B of this section unless brought within one year after the discovery of the untrue statement or the omission or after such discovery should have been made by the exercise of reasonable diligence. No action may be maintained to enforce any liability created pursuant to subsection C of this section unless brought within two years after the violation on which it is based. In no event shall any such action be brought by a purchaser more than three years after the sale to the purchaser.

§ 32-2194.10 Change of cemetery plan after approval by commissioner; notice; fee

A. It is unlawful for any owner or agent, after submitting to the commissioner the plan under which cemetery plots are to be offered for sale and securing his approval, to change the plan materially without first notifying the commissioner in writing of the intended change. Material changes covered by this section shall be prescribed in the rules of the commissioner. On receipt of any notice of a material change, the commissioner, if he determines such action to be necessary for the protection of purchasers, may suspend his approval of sale pending amendment of the notice as required by section 32-2194.01.

B. A filing fee of one-half of the fee that was charged for the initial certificate of authority pursuant to section 32-2194.02 but not less than two hundred fifty dollars shall accompany any amendment required by subsection A of this section.

§ 32-2194.11 Delivery of clear title by cemetery of cemetery plots

Cemetery plots shall not be sold which are subject to liens.

§ 32-2194.12 Permanent access to cemetery land

No cemetery may be sold without provision for permanent access.

§ 32-2194.13 Deposit of fees

All fees and earned expense collected under this chapter shall be deposited in the state general fund unless otherwise prescribed by law.

§ 32-2194.14 Cemetery brokers; disclosures

Before offering cemetery property or interment rights for sale in a licensed cemetery, a cemetery broker who is not a designated broker for the cemetery shall obtain and comply with all of the licensed cemetery's rules and shall disclose to the purchaser all fees and time frames of transfer and recordation of interment rights or deeds on the cemetery records.

§ 32-2194.15 Jurisdiction

The commissioner shall not be denied jurisdiction over any person subject to the provisions of this article because of similar jurisdiction over such person by any other agency or the applicability to such person of any rule prescribed pursuant to any other provision of law.

§ 32-2194.16 Sale of undeveloped cemetery property

With regard to cemetery property which is undeveloped, development must commence for that particular section or building within five years after the date of the first sale of a plot.

§ 32-2194.17 Transaction of cemetery business

Only a corporation or a limited liability company duly organized to conduct cemetery business may transact cemetery business pursuant to this article.

§ 32-2194.18 Application for authority to open and operate cemeteries

Before a corporation may engage in or transact any business of a cemetery it must file an application for a certificate of authority with the commissioner. Such application must show that the corporation owns or is actively operating a cemetery in this state which is subject to the provisions of this chapter or that the applicant is in a position to commence operating a cemetery.

§ 32-2194.19 Investigation of applicant before granting of certificate of authority where needed

Upon receipt of an application for a certificate of authority to operate a cemetery, the commissioner shall cause an investigation to be made of the physical status, plans, specifications and financing of the proposed cemetery, the character of the applicant, including its officers, directors, shareholders or members, and any other qualifications required of the applicant under this article. If the commissioner finds that the applicant has complied with all the provisions of this article and further finds that the area in which the proposed cemetery is to be located is not already adequately served, then he shall grant the certificate of authority.

§ 32-2194.20 Right of cemetery to make rules and regulations

Any cemetery subject to the provisions of this article may make, adopt, amend, add to, revise, or modify and enforce rules and regulations for the use, care, control, restriction and protection of all or any part of its cemetery, provided these rules and regulations are not contrary to law. These rules and regulations shall be on file with the real estate commissioner and shall at all times be posted in a conspicuous place in the offices of the cemetery or at some other place within the cemetery as may be convenient for inspection.

§ 32-2194.21 Survey of property; maps and plats

Every cemetery, from time to time as its property may be required for interment purposes, in addition to the other requirements of the article, shall:

1. In case of land, survey and subdivide it into sections, blocks, plots, avenues, walks or other subdivisions, and make a good and substantial map or plat showing the sections, plots, avenues, walks or other subdivisions, with descriptive names or numbers.

2. In case of a mausoleum, or crematory and columbarium, it shall make a good and substantial map or plat on which shall be delineated the sections, halls, rooms, corridors, elevations, and other divisions, with descriptive names or numbers.

§ 32-2194.22 Filing maps and declaration of dedication

The cemetery, in addition to filing the map or plat in the office of the county recorder as required by subdivisions, shall also file for record in the county recorder's office, a written declaration of dedication of the property delineated on the map or plat dedicating the property exclusively to cemetery purposes.

§ 32-2194.23 Nonapplication of law against perpetuities

Dedication to cemetery purposes pursuant to this chapter is not invalid as violating any laws against perpetuities, but is expressly permitted and shall be deemed to be in respect for the dead, a provision for the interment of human remains, and a duty to, and for the benefit of, the general public.

§ 32-2194.24 Trust fund to be established before certificate of authority granted

No certificate of authority shall issue to a corporation or limited liability company organized for the purpose of maintaining and operating a cemetery unless the articles of incorporation or organization certify to the establishment of an irrevocable trust fund for maintenance and operation in accordance with the provisions of this article, and there is attached to the articles of incorporation or organization the written instrument establishing the irrevocable trust fund accompanied by the receipt of the trustee designated in the written instrument for the minimum care fund hereinafter provided. Any cemetery that has been operating before January 1, 1998 and that was not previously required to establish an irrevocable trust fund shall not be required to establish an irrevocable trust fund unless a material change is made to the plan under which cemetery plots are offered for sale.

§ 32-2194.25 Trust fund to be established before existing cemetery can advertise as endowed-care cemetery

After the effective date of this article, no owner of a cemetery in existence at the effective date of this article, who previous to such date has not sold or contracted to sell lots in such cemetery with a provision for perpetual or endowed care, shall thereafter advertise or otherwise hold out to the public that such cemetery or any individual lot therein is entitled to perpetual or endowed care unless and until the owner shall have established a trust fund for the care of the cemetery, as provided by this article.

§ 32-2194.26 Initial deposit required in endowment-care fund

No corporation hereafter organized for the operation of a perpetual or endowed-care cemetery nor any owner of a cemetery not previously operating as a perpetual or endowed-care cemetery shall advertise or sell plots in such cemetery under the representation that the cemetery or any individual plot therein is entitled to perpetual or endowed care until there has been established an irrevocable trust fund to provide for such care in accordance with the following schedule:

1. Cemeteries located in an area having a population of less than ten thousand persons within a radius of fifteen miles from the center of such cemetery must deposit with the trustee the sum of ten thousand dollars in cash.

2. Cemeteries located in an area having a population of ten thousand or more persons but less than fifteen thousand persons within a radius of fifteen miles from the center of such cemetery must deposit with the trustee the sum of fifteen thousand dollars in cash.

3. Cemeteries located in an area having a population of fifteen thousand or more persons but less than twenty-five thousand persons within a radius of fifteen miles from the center of such cemetery must deposit with the trustee the sum of twenty thousand dollars in cash.

4. Cemeteries located in an area having a population of twenty-five thousand or more persons, but less than fifty thousand persons within a radius of fifteen miles from the center of such cemetery must deposit with the trustee the sum of thirty thousand dollars in cash.

5. Cemeteries located in an area having a population of fifty thousand or more persons within a radius of fifteen miles from the center of such cemetery must deposit with the trustee the sum of fifty thousand dollars in cash.

§ 32-2194.27 Restrictive use of income from endowed-care fund; obligation

The irrevocable trust fund established pursuant to section 32-2194.26 shall be evidenced by an instrument in writing and shall contain the following provisions:

1. There shall be designated a trustee for the endowed-care fund that is a financial institution authorized to do business in this state and authorized to act as trustee by the laws of this state for such investments. The trustee must be one in which no officer, director or owner of the cemetery is financially interested in any way.

2. The principal of the trust fund shall remain permanently intact, and only the income or the unitrust amount specified in section 14-11014 or 14-11015 shall be expended. It is the intent of this section that the income or unitrust amount of the fund shall be used solely for the care of plots or other burial spaces sold to third persons with a provision for perpetual or endowed care and the care of such other portions of the cemetery immediately surrounding such plots as may be necessary to preserve the beauty and dignity of the plots sold. The fund or its income shall never be used for the development, improvement or embellishment of unsold portions of the cemetery so as to relieve the owner of the cemetery of the ordinary cost incurred in preparing such property for sale.

3. A financial institution acting as a trustee does not have a legal obligation to operate a cemetery other than providing trust fund income to the receiver or successor of a cemetery unable to meet its perpetual care obligations. A trustee, in its sole discretion and without the approval of the court, may convert the trust to a total return unitrust and administer the endowed-care fund as provided in section 14-11014.

§ 32-2194.28 Deposit in endowed-care fund from sales

A. In addition to establishing a trust fund as required by this article, every perpetual or endowed-care cemetery shall deposit into its trust fund according to the following schedule for each sale within thirty days after the contract for the purchase of cemetery property is paid in full:

1. Two dollars seventy-five cents per square foot for each grave.

2. Thirty-six dollars for each niche.

3. One hundred twenty dollars for each crypt.

B. In addition to the deposits required in subsection A of this section, a cemetery may deposit in its trust fund up to fifteen per cent of the gross sales price of a grave, niche or crypt.

C. This section applies to every cemetery which in any way represents that it is a perpetual or endowed-care cemetery, regardless of whether it operated as a perpetual or endowed-care cemetery before July 2, 1963.

D. In the case of a perpetual or endowed-care cemetery which was in operation as a perpetual or endowed-care cemetery before July 2, 1963, the fund created by the deposits which subsection A of this section requires is subject to the same restrictions to which the trust funds required by sections 32-2194.24 and 32-2194.25 are subject.

§ 32-2194.29 Posting of signs by cemeteries

Each cemetery shall post in a conspicuous place in the office or offices where sales are conducted and in a conspicuous place at or near the entrance of the cemetery or its administration building, and readily accessible to the public, a legible sign in lettering of a size and style to be approved by the real estate commissioner indicating either the cemetery is an endowed or a nonendowed cemetery.

§ 32-2194.30 Restriction on use of endowed-care funds

Endowed-care funds shall not be used for any purpose other than to provide for the care of burial spaces as prescribed in section 32-2194.27. In investing these funds, the trustee shall exercise the judgment and care of a prudent investor under the circumstances then prevailing, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income or unitrust amount as well as the probable safety of their capital. Within the limitations of the foregoing standard, and subject to any express provisions or limitations contained in any particular trust instrument, a trustee is authorized to acquire every kind of property, real, personal or mixed, and every kind of investment, specifically including corporate obligations of every kind and stocks, preferred or common, that prudent investors acquire for their own account.

§ 32-2194.31 Crematories

Crematories which are licensed as part of a cemetery under this chapter shall comply with the requirements of chapter 12, article 6 of this title and rules adopted pursuant to that article.

§ 32-2194.32 Opening and closing of burial places

If any grave, mausoleum, niche or other place used or intended to be used for the burial of human remains is located in a cemetery, only a person employed or designated by the cemetery may open or close the grave, mausoleum, niche or other place used or intended to be used for the burial of human remains, subject to the rules established by the cemetery.

§ 32-2194.33 Cemetery property owners; address notification reclamation; abandoned cemetery plot

A. For the purposes of this section, an owner of cemetery property in any cemetery licensed under this chapter shall keep the cemetery informed in writing of the owner's current residence address. Before initiating a notice of abandonment, the cemetery shall notify each cemetery property owner by letter at the owner's last known address and notify all future cemetery property owners, in the contract for sale and the certificate of ownership, of the requirement to keep the cemetery informed in writing of their current residence address.

B. There is a presumption that cemetery property in any cemetery licensed under this chapter has been abandoned when an owner of unused cemetery property has failed to provide the cemetery with a current residence address for a period of fifty consecutive years and as a result the cemetery is unable to communicate by certified mail with the owner of the unused cemetery property. There is not a presumption of abandonment if either of the following occurs:

1. Cemetery property held in common ownership is adjoining whether in a grave space, plot, mausoleum, columbarium or other place of interment and is used within common ownership.

2. Any type of memorial marker has been placed on or attached to the cemetery property.

C. On the occurrence of a presumption of abandonment as prescribed by subsection B of this section, a cemetery may file with the department a certified notice attesting to the abandonment of the cemetery property. The notice shall do the following:

1. Describe the cemetery plot certified to have been abandoned.

2. Set forth the name of the last known owner of the cemetery plot or, if the owner is known to the cemetery to be deceased, the names, if known to the cemetery, of claimants that are heirs at law, next of kin or specific devisees under the will of the owner.

3. Describe the failure of the owner or claimants as prescribed by paragraph 2 of this subsection to keep the cemetery informed of the owner's current residence address for a period of fifty consecutive years or more.

4. Certify that cemetery property has not been included that is held in common ownership with any abandoned cemetery property as prescribed by subsection B of this section and that a memorial marker has not been placed on or attached to the cemetery property.

D. Irrespective of diversity of ownership of the cemetery property, a cemetery may include in its certification cemetery properties of various types.

E. The cemetery shall publish a notice of the approved abandoned cemetery property once each week for two consecutive weeks in a newspaper of general circulation in the county in which the cemetery property is located.

F. After one hundred twenty days from the final publication of the notice as provided in subsection E of this section, if there has been no notification of the address of the current owner, the cemetery shall have the right to resell the cemetery property and transfer the ownership of the cemetery property as provided in the cemetery's certificate of authority.

G. On the sale of each lot, grave, niche or crypt reclaimed pursuant to this section, the cemetery shall contribute to the endowed-care trust fund the amount currently required by section 32-2194.28.

H. On showing of evidence of right of ownership, persons or their heirs who were owners of cemetery property that was sold under this section shall have the right at any time to obtain equivalent cemetery property in the cemetery without additional charge. If no cemetery property is desired, the persons or their heirs may obtain and recover the amount originally paid to the cemetery for the cemetery property.

I. The cemetery shall make available cemetery property equal to ten per cent of the abandoned cemetery property sold under this section for the use of persons or their heirs who were owners of cemetery property that was sold under this section and who have the right at any time to obtain cemetery property in the cemetery under this section.

J. Persons who purchase cemetery property reclaimed pursuant to this section shall have the right to sell, alienate or otherwise transfer the cemetery property subject to and in accordance with the rules of the cemetery and payment of any applicable transfer fee.

Article 7 Sale of Unsubdivided Lands

§ 32-2195 Notice to commissioner of intention before offering for sale or lease of unsubdivided land; definition

A. Prior to the offering for sale or lease of unsubdivided land the owner or agent shall notify the commissioner in writing of the owner's or agent's intention to offer such parcels for sale or lease.

B. The notice required by this section shall contain the following information:

1. The name and address of the owner. If the holder of any ownership interest in the land is other than an individual, such as a corporation, partnership or trust, a statement naming the type of legal entity and listing the interest and the extent of such interest of each principal in the entity. For the purposes of this section, "principal" means any person or entity having a ten per cent or more financial interest or, if the legal entity is a trust, each beneficiary of the trust holding a ten per cent or more beneficial interest.

2. The name and address of the agent.

3. The legal description and area of the lands.

4. A true statement of the condition of the title to the land, including all encumbrances thereon.

5. A true statement of the terms and conditions under which such lands are to be offered to the public.

6. A statement of the use or uses for which the land will be offered or a statement that it is offered for no specific use.

7. A true statement of the provisions made for permanent access.

8. A true statement setting out the availability of water or lack thereof.

9. A true statement of the availability to the land of sewage disposal facilities and other public utilities including water, electricity, gas and telephone facilities.

10. A true statement or reasonable estimate, if applicable, of the amount of any indebtedness which has been or is proposed to be incurred by an existing or proposed special district, taxing area or assessment district within the boundaries of which the unsubdivided lands are located, and which is to pay for the construction or installation of any improvements to that land.

11. A true statement as to whether all or any portion of the unsubdivided land is located in an open range or area in which livestock may roam at large under the laws of this state and what provisions, if any, have been made for the fencing of the unsubdivided land to preclude livestock from roaming within such land.

12. If the owner or agent is a subsidiary corporation, a true statement identifying the parent corporation and any of the following in which the parent or any of its subsidiaries are or have been involved within the past five years:

(a) Any subdivision in this state.

(b) Any subdivision, wherever located, for which registration is required pursuant to the federal interstate land sales full disclosure act.

(c) Any subdivision, wherever located, for which registration would have been required pursuant to the federal interstate land sales full disclosure act but for the exemption for subdivisions whose lots are five acres or more in size.

13. A true statement identifying all other subdivisions, designated in paragraph 12, in which any of the following are or, within the last five years, have been directly or indirectly involved:

(a) The holder of any ownership interest in the land.

(b) The agent.

(c) Any principal or officer in the holder.

14. A true statement as to whether all or any portion of the unsubdivided land is located in territory in the vicinity of a military airport or ancillary military facility as defined in section 28-8461, in territory in the vicinity of a public airport as defined in section 28-8486, on or after July 1, 2001, in a high noise or accident potential zone as defined in section 28-8461 or on or after July 1 of the year in which the land becomes located in a high noise or accident potential zone. The statement required pursuant to this paragraph does not require the amendment or refiling of any notice filed before July 1, 2001 or before July 1 of the year in which the land becomes located in a high noise or accident potential zone.

15. Such other information and such other documents and certifications as the commissioner may reasonably require for the protection of the public.

C. Copies of original promotional and advertising material to be used with such offering shall be attached to the notice.

D. It shall be unlawful for any owner or agent to make any offerings regulated by this section without the written authorization of the commissioner. The commissioner shall issue a public report thereon and require a copy of the public report to be furnished to each offeree at the time of such offering.

E. It shall be unlawful to offer any lands regulated by this article without provisions having been made for permanent access over terrain on which roads could be established for conventional motor vehicles unless such provision is waived by the commissioner.

F. Satisfactory proof or evidence that access meets the requirements of subsection E of this section shall be furnished to the department in a report by a licensed engineer or land surveyor of this state.

G. The commissioner may terminate any authorization issued upon the grounds and in the manner set out in section 32-2183.

H. If the director of water resources has issued a water availability report, the state real estate commissioner shall require that all promotional material and contracts for the sale of such unsubdivided lands adequately display the director of water resources' report or a brief summary of the results prepared by the developer and approved by the real estate commissioner. If no report has been prepared by the director of water resources and the availability of water is unknown, the real estate commissioner shall require that all promotional material and contracts adequately display that no report has been prepared and that the availability of water is unknown.

I. Neither any real estate sales contract, conveyance, lease, assignment or other instrument to transfer any interest in unsubdivided land nor any covenant or restriction affecting real property shall contain any provision limiting the right of any party to appear or testify in support of or opposition to zoning changes, building permits or any other official acts affecting real property before a governmental body or official considering zoning changes, building permits or any other official acts affecting real property, whether such property is located within or outside of the boundaries of the unsubdivided land. All contractual provisions which conflict with this subsection are declared to be contrary to public policy. Nothing contained in this subsection shall prohibit private restrictions on the use of any real property.

§ 32-2195.01 Power of commissioner to exempt certain unsubdivided land by special order

A. In his discretion the commissioner may exempt by special order from any one or all of the provisions of this article certain unsubdivided land on written petition and on a showing by the petitioner, satisfactory to the commissioner, that compliance with this article is not essential to the public interest or for the protection of buyers by reason of the special characteristics of the unsubdivided land or the limited character and duration of the offer for sale, lease or financing.

B. The special order pursuant to this section shall relate to specific land.

C. A petition filed under this section shall be accompanied by an initial fee of one hundred dollars. The fees are not returnable irrespective of the nature of the action taken on the petition.

§ 32-2195.02 Examination of unsubdivided land by commissioner; fee

The commissioner shall examine any unsubdivided land offered for sale or lease pursuant to this article, and shall make public his findings. The total cost of travel and subsistence expenses incurred by the department in the examination, in addition to the initial filing fee provided for in this section, shall be borne by the owner of the unsubdivided land or his agent, or the subdivider of the project, on the basis of actual cost to the department. An initial filing fee of five hundred dollars shall accompany the written notification required in sections 32-2195 and 32-2195.10.

§ 32-2195.03 Unsubdivided land reports; denial of issuance; order prohibiting sale or lease; investigations; hearings; summary orders

A. Upon examination of unsubdivided land, the commissioner, unless there are grounds for denial, shall prepare and issue to the owner or agent a public report authorizing the sale or lease of the unsubdivided lands in this state. The report shall contain the data obtained in accordance with section 32-2195 and any other information which the commissioner determines is necessary to implement the purposes of this article. If any of the unsubdivided land is located within territory in the vicinity of a military airport or ancillary military facility as defined in section 28-8461, the report shall include, in bold twelve point font block letters on the first page of the report, the statements required pursuant to section 28-8484, subsection A and, if the department has been provided a map prepared pursuant to section 28-8484, subsection B, the report shall include a copy of the map. These report requirements do not require the amendment or reissuance of any public report issued on or before December 31, 2001 or on or after December 31 of the year in which the unsubdivided land becomes territory in the vicinity of a military airport or ancillary military facility. The commissioner shall require the owner or agent to reproduce the report and furnish each prospective buyer with a copy before the buyer signs an offer to purchase, taking a receipt therefor.

B. Notwithstanding any provision of subsection A of this section, an owner may prepare a final public report for use in the sale of unsubdivided lands as defined in section 32-2101, as follows:

1. The owner shall prepare the public report and provide a copy of the report to the commissioner with the submission of the notification required by sections 32-2195 and 32-2195.10 and shall comply with all other requirements of this article.

2. An initial filing fee of five hundred dollars or an amended filing fee of two hundred fifty dollars shall accompany the notification required by paragraph 1 of this subsection.

3. The department shall assign a registration number to each notification and public report submitted pursuant to this subsection and shall maintain a database of all of these submissions. The owner shall place the number on each public report.

4. The department shall determine within fifteen business days after the receipt of the notification and public report whether the notification and public report are administratively complete. The commissioner may either issue a certification that the notification and public report are administratively complete or may deny issuance of the certification if it appears that the application or project is not in compliance with all legal requirements, that the applicant has a background of violations of state or federal law or that the applicant or project presents an unnecessary risk of harm to the public.

5. An owner may commence sales or leasing activities as permitted under this article after obtaining a certificate of administrative completeness from the commissioner.

6. Before or after the commissioner issues a certificate of administrative completeness, the department may examine any public report, development or applicant that has applied for or received the certificate. If the commissioner determines that the owner or development is not in compliance with any requirement of state law or that grounds exist under this chapter to suspend, deny or revoke a public report, the commissioner may commence an administrative action under section 32-2154 or 32-2157. If the owner immediately corrects the deficiency and comes into full compliance with state law, the commissioner shall vacate any action that he may have commenced pursuant to section 32-2154 or 32-2157.

7. The department shall provide forms and guidelines for the submission of the notification and public report pursuant to this section.

C. The commissioner may deny issuance of a public report on any of the following grounds:

1. Failure to comply with any of the provisions of this article or the rules of the commissioner pertaining to this article.

2. The sale or lease would constitute misrepresentation to or deceit or fraud of the purchasers or lessees.

3. Inability to deliver title or other interest contracted for.

4. Inability to demonstrate that adequate financial or other arrangements acceptable to the commissioner have been made for installation of all streets, sewers, electric, gas and water utilities, drainage, flood control and other similar improvements included in the offering.

5. Failure to make a showing that the parcels can be used for the purpose for which they are offered.

6. Failure to provide in the contract or other writing the use or uses, if any, for which the parcels are offered, together with any covenants or conditions relative to the parcel.

7. Failure to demonstrate that adequate financial arrangements have been made for any guaranty or warranty included in the offering.

8. The owner or agent, officer, director or partner or trust beneficiary holding a ten per cent or more beneficial interest, or, if a corporation, any stockholder owning ten per cent or more of the stock in the corporation has:

(a) Been convicted of a felony or misdemeanor involving fraud or dishonesty or involving conduct of any business or a transaction in real estate, cemetery property, time-share intervals or membership camping campgrounds or contracts.

(b) Been permanently or temporarily enjoined by order, judgment or decree from engaging in or continuing any conduct or practice in connection with the sale or purchase of real estate or cemetery property, time-share intervals, membership camping contracts or campgrounds, or securities or involving consumer fraud or the racketeering laws of this state.

(c) Had an administrative order entered against him by a real estate regulatory agency or security regulatory agency.

(d) Had an adverse decision or judgment entered against him involving fraud or dishonesty or involving the conduct of any business in or a transaction in real estate, cemetery property, time-share intervals or membership camping campgrounds or contracts.

(e) Disregarded or violated any of the provisions of this chapter or the rules of the commissioner pertaining to this chapter.

(f) Participated in, operated or held an interest in any entity to which subdivision (b), (c), (d) or (e) applies.

D. No owner or agent may sell or lease or offer for sale or lease unsubdivided lands without first obtaining a public report and a certificate of administrative completeness from the commissioner. Any sale or lease of unsubdivided lands prior to issuance of the public report shall be voidable by the purchaser. An action by the purchaser to void the transaction shall be brought within three years of the date of execution of the purchase agreement by the purchaser. In any voidance action the prevailing party is entitled to reasonable attorney fees as determined by the court.

E. Any applicant objecting to the denial of a public report, within thirty days after receipt of the order of denial, may file a written request for a hearing. The commissioner shall hold the hearing within twenty days after receipt of the request for a hearing unless the party requesting the hearing requests a postponement. If the hearing is not held within twenty days after a request for a hearing is received plus the period of any postponement, or if a proposed decision is not rendered within forty-five days after submission, the order of denial shall be rescinded and a public report issued.

F. On the commissioner's own motion, or when the commissioner has received a complaint and has satisfactory evidence that the owner or agent is violating any provision set forth in this article or the rules of the commissioner or has engaged in any unlawful practice as defined in section 44-1522 with respect to the sale of unsubdivided lands or deviated from the provisions of the public report, the commissioner may investigate the subdivision project and examine the books and records of the owner or agent. For the purpose of examination, the owner or agent shall keep and maintain records of all sales transactions and funds received by the owner or agent pursuant to the sales transactions and shall make them accessible to the commissioner upon reasonable notice and demand.

G. On the commissioner's own motion, or when the commissioner has received a complaint and has satisfactory evidence that grounds exist as provided in subsection C of this section or that any person has engaged in any unlawful practice as defined in section 44-1522 with respect to the sale of unsubdivided lands or deviated from the provisions of the public report, the commissioner may conduct an investigation of the matter, issue a summary order as provided in section 32-2157, or hold a public hearing and, after the hearing, may issue the order or orders the commissioner deems necessary to protect the public interest and ensure compliance with the law, rules or public report. If, after the hearing, the violation of the law, rules or public report continues, the commissioner may bring an action in any court of competent jurisdiction against the person to enjoin the person from continuing the violation or engaging in or doing any act or acts in furtherance of the violation.

§ 32-2195.04 Sale of lots or parcels of unsubdivided lands; conditions precedent; methods

A. It is unlawful for the owner or agent of unsubdivided lands subject to the provisions of this article to sell or offer to sell lots or parcels of such land unless the sale complies with one of the following:

1. Execution, delivery and recording of a deed in good and sufficient form conveying to the purchaser merchantable and marketable title to the property subject only to such exceptions as may be agreed to in writing by the purchaser. Any balance remaining unpaid by the purchaser may be evidenced by a note and mortgage or deed of trust. The deed and mortgage or deed of trust shall be recorded by the owner or agent within sixty days of execution thereof by the purchaser.

2. Execution, delivery, recording and depositing in escrow, not later than sixty days after execution by the purchaser, with a person or firm authorized to receive escrows under the laws of this state or the state in which the unsubdivided lands are located, of a real estate sales contract pertaining to the property, which contract sets forth the full and correct legal description of the property being sold and the precise terms and conditions under which the property is being sold together with:

(a) A copy of a preliminary title report showing the condition of title to the property on the date of the real estate sales contract or a preliminary title report showing the condition of title on an earlier date together with a copy of any document, recorded subsequent to the date of the preliminary title report, which affects the title to the property.

(b) An executed deed in good and sufficient form conveying to the purchaser merchantable and marketable title, subject only to such exceptions as may be agreed to in writing by the purchaser which deed, under the terms of the real estate sales contract, is to be delivered to the escrow agent provided for under the contract within sixty days of the purchaser's execution of the contract and is to be recorded within sixty days after purchaser's compliance with the obligations imposed on him under the contract together with any release or partial release of any blanket encumbrance pertaining to said real property being sold.

(c) Any and all documents necessary to release or extinguish any blanket encumbrance to the extent it applies to the real property being sold, or a partial release of the parcel being sold from the terms and provisions of such blanket encumbrance.

3. Execution, delivery and recording of a deed to the real property to a trustee together with a trust agreement and any and all documents necessary to release or extinguish any blanket encumbrance to the extent it applies to property being sold, or a partial release of the lot or parcel being sold from the terms and provisions of such blanket encumbrance. The trust agreement shall provide for conveyance by the trustee to a purchaser, upon purchaser's compliance with the obligations imposed on him under his real estate sales contract, by a deed in good and sufficient form conveying to the purchaser merchantable and marketable title, subject only to such exceptions as may be agreed to in writing by the purchaser. The real estate sales contract of the real property being sold shall be recorded by the owner or agent of unsubdivided lands within sixty days of execution of the real estate sales contract by the purchaser. The trustee shall execute, record and deliver the deed and record the release or partial release required by this subsection within sixty days of the purchaser's fulfillment of the terms of his real estate sales contract.

B. All documents required to be recorded under the provisions of this section shall be recorded in the county and state wherein the unsubdivided land is located.

C. Any sale or assignment of a mortgage, deed of trust or real estate sales contract by an owner or agent of unsubdivided lands or trustee shall be recorded in the county and state where the unsubdivided land is located and a notice of such sale or assignment provided to the commissioner, the recording and notice thereof to be effected not later than sixty days after the execution of such assignment.

D. Any contract or agreement entered into after January 1, 1977, to purchase or lease a parcel in unsubdivided lands subject to this article may be rescinded by the purchaser without cause of any kind by sending or delivering written notice of rescission by midnight of the seventh calendar day following the day on which the purchaser or prospective purchaser has executed such contract or agreement. The owner or agent shall clearly and conspicuously disclose, in accordance with the regulations adopted by the commissioner, the right to rescind provided for in this section and shall provide, in accordance with regulations adopted by the commissioner, an adequate opportunity to exercise the right to rescission within the time limit set in this section. The commissioner may adopt regulations to exempt commercial and industrial developments from such requirement.

E. If a buyer of a lot or parcel of unsubdivided land has not inspected the lot or parcel prior to the execution of the purchase agreement, the buyer shall have a six-month period after the execution of the purchase agreement to inspect the lot or parcel and at the time of the inspection have the right to unilaterally rescind the purchase agreement. At the time of inspection, the buyer must sign an affidavit stating that he has inspected the real property and at the request of the commissioner such affidavit may be required to be filed with the department.

F. Only a bank, savings and loan association or title insurance company doing business under the laws of this state or the United States or the state in which the unsubdivided land is located, or a title insurance company wholly-owned subsidiary or underwriting agent qualified under section 20-1580, or persons or firms authorized to receive escrows under the laws of this state or the state in which the unsubdivided land is located may act as trustee under paragraph 3 of subsection A of this section. Nothing in this subsection extends to a firm or individual authority to act as a trustee unless such authority is otherwise provided by law.

§ 32-2195.05 Advertising material; contents; order prohibiting use; costs of investigation

A. The owner or agent shall file with the commissioner a copy of any original promotional and advertising material used in connection with sales of unsubdivided lands and copies of any material changes therein. The owner or agent shall file with the commissioner, within twenty-one days of use, a copy of any subsequent advertising of any kind, used directly or indirectly in connection with the purchase, sale or lease of any lot or parcel subject to the provisions of this article. It shall not be necessary to make repetitive filings of material which is the same as or varies only in minor details from material which has previously been filed with the commissioner for the unsubdivided lands.

B. No advertising, communication or sales literature of any kind, including oral statements by salespersons or other persons, shall contain:

1. Any untrue statement of material fact or any omission of material fact which would make such statement misleading in light of the circumstances under which such statement was made.

2. Any statement or representation that the land is offered without risk or that loss is impossible.

3. Any statement or representation or pictorial representation of proposed improvements or nonexistent scenes without clearly indicating the improvements are proposed and the scenes do not exist.

4. Any statement or representation that the lot or parcels are suitable as homesites or building lots unless either of the following is true:

(a) Potable water is available from a certificated public utility or a municipal corporation and either an individual sewage disposal system will operate or a sewer system is available from a certified public utility or a municipal corporation.

(b) Facts to the contrary are clearly and conspicuously included in each advertisement pertaining to the property.

C. All advertising and sales literature shall be consistent with the information contained in the notice of intention pursuant to section 32-2195 and the public report pursuant to section 32-2195.03.

D. If it appears to the commissioner that any person is or has engaged in advertising or promotional practices in violation of this article, the commissioner may hold a hearing as a contested case under title 41, chapter 6, article 10 and issue such order or orders as he deems necessary to protect the public interest, or the commission may bring an action in any court of competent jurisdiction against such person to enjoin such person from continuing such violation.

E. The commissioner may adopt such rules and guidelines as he deems necessary to protect the public interest and to assure that all advertising and promotional practices with respect to land subject to the provisions of this article are not false or misleading.

F. It is unlawful for any owner, agent or employee of any development or other person with intent directly or indirectly to sell or lease lots or parcels subject to the provisions of this article to authorize, use, direct or aid in any advertising, communication, sales literature or promotional practice which violates this section.

G. Nothing contained in this section shall apply to the owner or publisher of a newspaper, magazine or other publication of printed matter wherein such advertisement appears or to the owner or operator of a radio or television station which disseminates such advertisement when the owner, publisher or operator has no knowledge of the intent, design or purpose of the advertiser.

§ 32-2195.06 Civil liabilities

A. When any part of the notice of intention filed pursuant to section 32-2195 contains an untrue statement of a material fact or omits a material fact required to be stated in such notice, the owner or agent shall be liable as provided in this section to any person who acquires land covered by such notice of intention during such period the notice of intention remained uncorrected unless it is proved that at the time of such acquisition the person acquiring the land knew of such untruth or omission.

B. Any owner or agent who sells or leases unsubdivided lands subject to this article in violation of section 32-2195.03 or by means of a public report which contains an untrue statement of a material fact or omits a material fact required to be stated in such report shall be liable to the purchaser of such land as provided in this section.

C. It is unlawful for an owner or agent in selling or leasing, or offering to sell or lease, any unsubdivided lands subject to this article to:

1. Employ any device, scheme, or artifice to defraud.

2. Obtain money or property by means of a material misrepresentation with respect to any information included in the notice of intention or the public report or with respect to any other information pertinent to the parcel and upon which the purchaser relies.

3. Engage in any transaction, practice or course of business which operates or would operate as a fraud or deceit upon a purchaser.

D. Damages in any suit brought pursuant to this section shall be the difference between the amount paid for the land together with the reasonable cost of improvements to such land and whichever of the following amount is the smallest:

1. The value of the land and improvements as of the time such suit was brought.

2. The price at which such land was disposed of in a bona fide market transaction prior to suit.

3. The price at which such land was disposed of in a bona fide market transaction after suit was brought but prior to judgment.

E. In any action in which a violation of this section is established the purchaser shall also be entitled to recover reasonable attorney fees as determined by the court. If a violation is not established, the court, in its discretion, may award reasonable attorney fees to the defendant.

F. Every person who becomes liable to make any payment pursuant to this section may recover contribution as in cases of contract from any person who, if sued separately, would have been liable to make the same payment.

G. In no case shall the amount recoverable pursuant to this section exceed the sum of the purchase price of the land, the reasonable cost of improvements installed by the purchaser and reasonable court costs and attorneys fees.

H. Nothing contained in this section shall be construed to preclude any other remedies that may exist at law or in equity.

I. No action shall be maintained to enforce any liability created pursuant to subsection A or B of this section unless brought within one year after the discovery of the untrue statement or the omission or after such discovery should have been made by the exercise of reasonable diligence. No action shall be maintained to enforce any liability created pursuant to subsection C of this section unless brought within two years after the violation upon which it is based. In no event shall any such action be brought by a purchaser more than three years after the sale or lease to such purchaser.

§ 32-2195.07 Jurisdiction

The commissioner shall not be denied jurisdiction over any person subject to the provisions of this article because of similar jurisdiction over such person by any other agency or the applicability to such person of any regulation prescribed pursuant to any other provision of law.

§ 32-2195.09 Recordable forms of contracts

In accordance with regulations adopted by the commissioner, each purchaser of unsubdivided land shall be provided with a copy, in recordable form, of each contract involved in the sale of such land to the purchaser at the closing of the contract.

§ 32-2195.10 Change of plan after approval by commissioner; notice

It is unlawful for an owner, agent or subdivider, after submitting to the commissioner a plan under which unsubdivided lands are to be offered for sale or lease and securing his approval, to change the plan materially without first notifying the commissioner in writing of the intended change. On receipt of a notice of a change of plan, the commissioner, if he determines such action to be necessary for the protection of purchasers, may suspend his approval of the sale or lease pending amendment of the public report.

§ 32-2195.11 Civil penalties; limitation

A. An owner or agent who is subject to the jurisdiction of the department and who violates any provision of this chapter relating to the sale or lease of unsubdivided lands or any rule adopted or order issued by the commissioner relating to the sale or lease of unsubdivided lands or who engages in any unlawful practices defined in section 44-1522 with respect to the sale or lease of unsubdivided lands may be assessed a civil penalty by the commissioner, after a hearing, in an amount of not more than one thousand dollars per infraction. An infraction that concerns more than one lot among unsubdivided lands is a single infraction for the purposes of this section.

B. A proceeding for the imposition of a civil penalty or for suspension or revocation of a license for a violation of this article or any rule adopted or order issued by the commissioner must be commenced within the earlier of five years of either of the following:

1. Actual discovery by the department.

2. Discovery that should have occurred if the department was reasonably diligent.

§ 32-2195.12 Recording of actions

A. Whenever the commissioner issues a cease and desist order, obtains a court order enjoining further sales, issues an order of prohibition or suspends approval of an unsubdivided lands public report, the action shall be recorded in the book of deeds in the office of the county recorder in any county in which the unsubdivided property is located and include the legal description of the affected land. The commissioner shall also provide notice of the order or suspension to all affected parties with an ownership interest of record in any lot, parcel or fractional interest, in the unsubdivided property within ten business days of issuing the order or suspension.

B. In the event of a revocation of any of the orders which require recording in subsection A, an order of release shall be recorded in the same manner within ten business days.

Article 9 Real Estate Timeshares

§ 32-2197 Definitions

In this article, unless the context otherwise requires:

1. "Accommodation" means any apartment, condominium or cooperative unit, cabin, lodge, hotel or motel room, or other private or commercial structure containing toilet facilities that is designed and available for use and occupancy as a residence by one or more individuals and that is included in the offering of a timeshare plan.

2. "Advertisement" means any written, oral or electronic communication that is directed to or targeted to persons in this state and that contains a promotion, inducement, premium or offer to sell a timeshare plan, including brochures, pamphlets, radio and television scripts, electronic media, telephone and direct mail solicitations and other means of promotions.

3. "Assessment" means the share of funds required for the payment of common expenses that the managing entity assesses periodically against each purchaser.

4. "Association" means any organized body consisting of the purchasers of interests in a timeshare plan.

5. "Component site" means a specific geographic location where accommodations that are part of a multisite timeshare plan are located. Separate phases of a single timeshare property in a specific geographic location and under common management are a single component site.

6. "Developer" means either of the following:

(a) Any person, corporation, partnership, limited liability company, trust or other entity, other than a sales agent, that creates a timeshare plan or is in the business of selling timeshare interests or employs sales agents to sell timeshare interests.

(b) Any person or entity that succeeds to the interest of the developer by sale, lease, assignment, mortgage or other transfer if the person offers at least twelve timeshare interests in a particular timeshare plan and the person is in the business of selling timeshare interests or employs sales agents to sell timeshare interests.

7. "Dispose" or "disposition" means a voluntary transfer or assignment of any legal or equitable interest in a timeshare plan other than the creation, transfer, assignment or release of a security interest.

8. "Exchange company" means any person owning or operating or both owning and operating an exchange program.

9. "Exchange program" means any method, arrangement or procedure for the voluntary exchange of timeshare interests or other property interests. Exchange program does not include an assignment of the right to use and occupy accommodations and facilities to purchasers or owners of timeshare interests within a single site timeshare plan.

10. "Managing entity" means the association or other person that undertakes the duties, responsibilities and obligations of the management of a timeshare plan.

11. "Multisite timeshare plan" includes a specific timeshare interest or a nonspecific timeshare interest.

12. "Nonspecific timeshare interest" means the right to use accommodations at more than one component site created by or acquired through the timeshare plan's reservation system, but not including a specific right to use any particular accommodations.

13. "Offer" or "offering" means any marketing, promotion, solicitation or advertising of any kind that is intended to interest prospective customers in the sale, lease or use of a timeshare interest in a timeshare plan, other than as security for an obligation, whether now or in the future. Offer or offering does not include a general promotion of a resort not intended to market timeshare interests.

14. "Person" means a natural person, corporation, limited liability company, partnership, joint venture, association, estate, trust, federal or state government, political subdivision or other legal entity or any combination of these entities.

15. "Premium" means anything of value offered, promised or given to a prospective customer as an incentive to attend a presentation for the sale, lease or use of a timeshare interest or to tour or visit a timeshare property.

16. "Promotion" means a plan or device, including one involving the possibility of a prospective purchaser receiving a vacation, discount vacation, gift or prize, used by a developer or the developer's employee, or on the developer's behalf by an agent or the agent's employee, an independent contractor or the independent contractor's employee in connection with the offering and sale of timeshare interests in a timeshare plan.

17. "Purchaser" means any person, other than a developer, who, by means of a voluntary transfer, acquires a legal or equitable interest in a timeshare plan other than a security for an obligation.

18. "Purchase agreement" means a document that legally obligates a person to sell or buy a timeshare interest.

19. "Redemption certificate" means a premium that grants a right to or the promise of the future delivery of goods or services and that is conditioned on the holder's compliance with stated requirements, limitations or conditions. Redemption certificate does not include a prepaid premium or discount certificate, other than a travel related premium, that is redeemable for goods or services at a business located in this state, including a restaurant or retail store.

20. "Reservation system" means the method, arrangement or procedure in which a purchaser, in order to reserve the use or occupancy of any accommodation of a multisite timeshare plan for one or more timeshare periods, is required to compete with other purchasers in the same multisite timeshare plan, regardless of whether the reservation system is operated and maintained by the multisite timeshare plan managing entity, an exchange company or any other person. If a purchaser is required to use an exchange program as the purchaser's principal means of obtaining the right to use and occupy accommodations, that arrangement is a reservation system. Reservation system does not include the use by an exchange company of a mechanism for the exchange of use of timeshare periods among members of an exchange program.

21. "Sales agent" means a person who, directly or through the person's employees, agents or independent contractors, sells or offers to sell one or more timeshare interests in a timeshare plan to any individual in this state.

22. "Single site timeshare plan" means the right to use accommodations at a single timeshare property.

23. "Specific timeshare interest" means the right to use accommodations at a specific timeshare property, together with use rights in accommodations at one or more other component sites created by or acquired through the timeshare plan's reservation system.

24. "Timeshare estate" means the right of occupancy in a timeshare property that is coupled with an estate in real property.

25. "Timeshare instrument" means one or more documents creating or governing the operation of a timeshare plan.

26. "Timeshare interest" includes either a timeshare estate or a timeshare use.

27. "Timeshare period" means the period of time when the purchaser of a timeshare plan is afforded the opportunity to use the accommodations of a timeshare plan.

28. "Timeshare plan" means any arrangement, plan or similar device, other than an exchange program, whether by membership agreement, sale, lease, deed, license or right-to-use agreement or by any other means, in which a purchaser, in exchange for consideration, receives ownership rights in or the right to use accommodations for a period of time less than a full year during any given year, but not necessarily for consecutive years. A timeshare plan may be a single site timeshare plan or a multisite timeshare plan.

29. "Timeshare property" means one or more accommodations subject to the same timeshare instrument, together with any other property or rights to property appurtenant to those accommodations.

30. "Timeshare use" is the right to occupy a timeshare property that is not coupled with an estate in real property.

§ 32-2197.01 Creation of timeshare plans; ratio

A timeshare plan may be created in any accommodation unless prohibited by any law or county, city or town zoning ordinance or regulation to the contrary. All timeshare plans shall maintain a one-to-one purchaser-to accommodation ratio so that the total number of purchasers eligible to use the accommodations of the timeshare plan during a given calendar year never exceeds the total number of accommodations available for use in the timeshare plan during the same calendar year. For purposes of calculating the ratio, a purchaser who is delinquent in the payment of timeshare plan assessments shall continue to be considered eligible to use the accommodations of the timeshare plan.

§ 32-2197.02 Notice of intent to sell; application for timeshare plan public report; authorization for pre-sales

A. Any person who sells, offers to sell or attempts to solicit prospective purchasers located in this state to purchase a timeshare interest or any person who creates a timeshare plan with an accommodation in this state, whether or not the plan is sold or offered for sale in this state, shall register a notice of intent to sell and application for a public report with the department.

B. Except as otherwise provided in subsection C of this section, an application for a public report for a timeshare plan must contain the following documents and information:

1. The name and address of the owner and developer. If the holder of any ownership interest in the land is other than an individual, including a corporation, partnership, limited liability company, trust or other entity, a statement naming the type of legal entity and listing the interest and the extent of such interest of each principal in the entity. For the purposes of this paragraph, "principal" means any person or entity having a ten per cent or more financial interest or, if the legal entity is a trust, each beneficiary of the trust holding a ten per cent or more beneficial interest.

2. A comprehensive statement of the timeshare plan.

3. The legal description and location of the timeshare property being offered.

4. To the extent required by applicable local or state laws, a recorded map of the timeshare property showing book, page and date of recording or instrument number and date of recording, and if required by applicable local or state laws, approval by the county or city in which the timeshare property is located. A map, survey or location plan is required for incomplete timeshare properties. A timeshare property involving completed buildings where all purchasers are given an on-site tour prior to a financial commitment may not require a plat map. The need for a map, survey, location plan or building plan on such completed timeshare properties will be determined at the time of application.

5. A description of the total timeshare property in terms of the number of buildings, number of stories, number of units, common areas of the timeshare property or public use areas in any hotel, motel or other facility.

6. Proof of adequate financial arrangements and assurances for completion of any improvements included in the offering to be installed by the developer, the estimated schedule for completion of the improvements and provisions, if any, for the continued maintenance of the improvements.

7. A true statement of the availability of sewage disposal facilities and other public utilities including water, electricity, gas and telephone facilities in the timeshare property and the estimated schedule for their installation.

8. A statement of the provisions that have been made for permanent access, and provisions, if any, for health department approved sewage and solid waste collection and public utilities, including water.

9. A complete disclosure as to the operating costs of the timeshare plan, including all of the variable costs of operation, management and reserves and method of assessment, including evidence of financial arrangements which provide for the developer's guarantee of payment of assessment on unsold interests, or if the developer is not paying such costs, the effect such nonpayment will have on operating costs.

10. A statement that the developer must notify the commissioner if a timeshare plan accommodation may become subject to a tax or other lien arising out of claims against other purchasers in the same timeshare plan. The commissioner may require the developer to notify a prospective purchaser of any potential tax or lien that would materially and adversely affect the prospective purchaser.

11. A current preliminary title report for all accommodations comprising the timeshare property for which the application is being made.

12. The recorded declaration of dedication of the timeshare property or other timeshare instruments or contracts incorporating all covenants of the grantor or lessor and creating the timeshare interests and the provisions of the plan, if any, to include organization of an association.

13. A true statement as to the methods to be used in accordance with section 32-2197.12 to provide that the purchaser of a timeshare interest will not lose or have the purchaser's interest imperiled by the foreclosure of underlying liens, encumbrances or other obligations and that the developer can convey, or cause to be conveyed, the interest in the offering.

14. The terms and conditions as to how a purchaser's interest is to be conveyed including examples of all contracts, purchase agreements, deeds, fact sheets and other instruments to be used in marketing, financing and conveying timeshare interests.

15. A true statement as to title to personal property within the units or timeshare property incident to a purchaser's use and how purchasers will receive assured use of personal property during the term offered.

16. A statement of the provisions made for the management of the timeshare plan, including a copy of the management agreement, relationship with the developer and whether the management entity will be bonded or insured.

17. The name, street address, mailing address and telephone number of:

(a) The designated broker, if any, used by the developer.

(b) A managing entity of the timeshare plan.

18. Copies of all contracts and promotional material pertaining to any exchange program included in the offering.

19. If the timeshare property or timeshare plan being registered is located within the United States, but outside this state, each filing must include evidence that the timeshare property or timeshare plan is qualified for sale in the home state where the timeshare property or timeshare plan is located according to the standards or requirements for the sale of timeshare interests existing in the home state at the time of the filing.

20. If the timeshare property or timeshare plan being registered is located outside the United States, each filing of a foreign timeshare property or timeshare plan must include evidence establishing that all requirements of the country where the timeshare property or timeshare plan is located have been met for the sale of timeshare interests or the local equivalent of timeshare interests in the home country at the time of the filing.

21. A public report that complies with the requirements of section 32-2197.08.

22. Such other information and such other documents and certificates as the commissioner may reasonably require.

C. At the developer's request the commissioner may authorize the developer to conduct pre-sales of the timeshare plan before the issuance of a public report if the application for a public report is administratively complete, as determined by the commissioner or as established by rule. The authorization for pre-sales allows the developer to begin offering and selling timeshare interests while the application for the timeshare public report is in process. To obtain an authorization to conduct pre-sales, the developer shall do all of the following:

1. Submit a formal written request to the commissioner for an authorization to conduct pre-sales.

2. Submit an administratively complete application for a timeshare public report to the commissioner, including all appropriate fees and exhibits required under subsection B of this section.

3. Provide evidence acceptable to the commissioner that all monies received by the developer will be placed in an independent escrow account with instructions that monies will not be released until a timeshare public report has been granted.

4. Give each purchaser and prospective purchaser a copy of the proposed timeshare public report that the developer has submitted to the department with the initial application.

5. Give each purchaser the opportunity to cancel the purchase agreement in accordance with section 32-2197.03. The purchaser shall have an additional opportunity to cancel in accordance with section 32-2197.03 on the issuance of an approved timeshare public report only if the commissioner determines that there is a material and adverse change in the disclosures contained in the approved timeshare public report from those given to the purchaser in the proposed timeshare public report.

§ 32-2197.03 Purchase agreements; rescission of contract or agreement; cancellation or termination of timeshare interests

A. A purchase agreement shall be in writing and shall be signed by the purchaser. The developer shall give the purchaser a paper copy of the purchase agreement when the purchaser signs the purchase agreement.

B. The purchaser may rescind the purchase agreement without cause of any kind by sending or delivering a written notice of rescission by midnight of the tenth calendar day following the day on which the purchaser or prospective purchaser executed the purchase agreement. The rescission rights shall be conspicuously disclosed in the purchase agreement. If the developer allows the rescission period to extend beyond ten calendar days, the rescission period disclosure in the purchase agreement shall reflect the longer period of time. The disclosure required by this subsection shall be printed immediately before the space reserved in the purchase agreement for the signature of the purchaser and shall include the following information:

1. The purchaser may cancel the purchase agreement without a penalty or obligation within ten calendar days, or another time period if applicable, after the purchaser signs the purchase agreement.

2. If the purchaser decides to cancel the purchase agreement, the purchaser shall notify the seller in writing of the purchaser's intent to cancel.

3. The purchaser's notice of cancellation is effective on the date the cancellation is sent and shall be sent to the seller at the seller's address. The seller's address and telephone number shall be listed in the purchase agreement.

4. The purchaser may execute all closing documents in advance. However, the closing, as evidenced by delivery of the deed or other document, is prohibited before the ten calendar day cancellation period expires.

C. The denial of a purchaser's rights under this section without a good faith legal basis constitutes an unlawful practice under section 44-1522. The attorney general may investigate and take appropriate action as prescribed by title 44, chapter 10, article 7.

D. This section applies to any timeshare plan approved by the commissioner pursuant to either article 4 of this chapter or this article, regardless of the date of issuance of the public report.

§ 32-2197.04 Notification of material change

A. The developer of a timeshare plan that is the subject of an outstanding timeshare public report shall immediately report to the department relevant details concerning any material change in the timeshare plan itself or in the program for marketing the timeshare interests.

B. On receipt of a written notice of a material change, the commissioner, if the commissioner determines such action to be necessary for the protection of purchasers, may suspend his approval of the sale or lease pending amendment of the public report. For sales made after the material change and pending amendment of the public report, the commissioner may require the developer to fully disclose the change in a prepared supplement to the public report. The supplement shall be delivered with the previously approved public report to all prospective purchasers until the new public report is issued. The commissioner shall not require the developer to deliver the amended public report to or obtain a receipt from prior purchasers unless the commissioner specifically finds that the developer's disclosure of the changes was not an adequate disclosure.

§ 32-2197.05 Escrow or trust account; agreement; evidence of completion; financial assurance

A. A developer of a timeshare plan shall deposit in an escrow or trust account in a federally insured depository one hundred per cent of all monies that are received during the purchaser’s rescission period. The deposit of these monies shall be evidenced by an executed agreement between the escrow or trust account agent and the developer that includes the following provisions:

1. Monies may be disbursed to the developer by the escrow or trust account agent from the account only after expiration of the purchaser’s rescission period and in accordance with the purchase agreement, subject to subsection B.

2. If a purchaser cancels the purchase agreement pursuant to the agreement's terms, the monies shall be paid to the purchaser or paid to the developer if the purchaser’s monies have been previously refunded by the developer.

B. If a developer contracts to sell a timeshare interest and the construction of any timeshare property in which the timeshare interest is located has not been completed, when the rescission period expires the developer shall continue to maintain in an escrow or trust account all monies received by the developer or on the developer's behalf from the purchaser under a purchase agreement either before or after the rescission period expires. The types of documentation that shall be required for evidence of completion include a certificate of occupancy, a certificate of substantial completion or an equivalent public safety inspection from an agency in the applicable jurisdiction or other evidence of completion acceptable to the commissioner or as provided by rule. Monies shall be released from escrow as follows:

1. If a purchaser properly cancels the purchase agreement pursuant to the agreement's terms, the monies shall be paid to the purchaser or paid to the developer if the developer has previously refunded the purchaser’s monies.

2. If a purchaser defaults in the performance of the purchaser’s obligations under the purchase agreement, the monies shall be paid to the developer.

3. If the developer defaults in the performance of the developer's obligations under the purchase agreement, the monies shall be paid to the purchaser.

4. If the monies of a purchaser have not been previously disbursed in accordance with paragraph 2 of this subsection, the monies may be disbursed to the developer by the escrow agent on the issuance of acceptable evidence of completion of construction.

C. In lieu of placing monies in escrow in accordance with this section, the commissioner may accept from the developer a surety bond, irrevocable letter of credit or other financial assurance acceptable to the commissioner or as provided by rule. Any acceptable financial assurance must be in an amount equal to or in excess of the monies that would otherwise be placed in escrow or in an amount equal to or in excess of the cost to complete the incomplete property in which the timeshare interest is located.

D. The developer shall make documents related to the escrow or trust account or escrow or trust obligation available to the commissioner on the commissioner’s request. The developer shall maintain any disputed monies in the escrow account until either of the following occurs:

1. The developer receives a written direction agreed to and signed by all parties.

2. A civil action regarding the monies has been filed, in which case the developer shall deposit the monies with the court of appropriate jurisdiction.

§ 32-2197.06 Declaration of dedication

The declaration or other documents described in section 32-2197.02, subsection B, paragraph 12 shall include the following general provisions as applicable to the particular timeshare property:

1. Provisions for organization of an association if applicable.

2. A description of the real and personal property for the common ownership or use of the timeshare interest owners.

3. A description of the services to be made available to timeshare interest owners under the timeshare program.

4. Provisions for transfer to the association of control over the timeshare property and services comprising the project.

5. Procedures for calculating and collecting regular and special assessments from timeshare owners to defray expenses of the timeshare plan and for related purposes.

6. Procedures for preparation and dissemination to timeshare owners of budgets, financial statements and other information related to the timeshare plan.

7. Procedures for terminating the membership and selling the interest of a timeshare owner for failure to pay regular or special assessments.

8. Policies and procedures for the disciplining of members for failure to comply with provisions of the governing timeshare instruments for the timeshare plan, including the late payment of assessments.

9. Procedures for employing and for terminating the employment of a managing entity for the timeshare plan.

10. Provisions for adoption of standards and rules of conduct for the use of accommodations by timeshare interest owners.

11. Provisions for establishment of the rights of owners to the use of accommodations according to a schedule or under a first reserved, first served priority system.

12. If applicable, procedures for compensating use periods or monetary compensation for an owner of a timeshare interest in a timeshare plan if an accommodation cannot be made available for the period of use to which the owner is entitled by schedule or under a reservation system because of an error by the association or managing entity.

13. Provisions for comprehensive general liability insurance for death, bodily injury and property damage resulting from the use of an accommodation within the timeshare plan by timeshare owners, their guests and other users.

14. A description of restrictions upon partition of a timeshare property.

15. Policies and procedures for the use of accommodations for transient accommodations or other income producing purposes during a period of nonuse by timeshare owners.

16. Policies and procedures for the inspection of the books and records of the timeshare plan by timeshare owners.

17. Procedures for the amendment of the timeshare instruments for the timeshare plan.

18. If applicable, procedures for annexation of additional accommodations to the timeshare plan.

19. Policies and procedures in the event of condemnation, destruction or extensive damage to accommodations including provisions for the disposition of insurance proceeds or damages payable on account of damage or condemnation.

20. Policies and procedures on regular termination of the timeshare plan including details on what happens to a purchaser's interest on termination.

21. Policies and procedures for collective decision making and the undertaking of action by or in the name of the association, if any, including, if applicable, representation of timeshare interests in an association for the common interest subdivision in which the interests are located.

22. If applicable, allocation of the costs of maintenance and operation between those accommodations dedicated to a timeshare plan and accommodations in the same timeshare plan being used for transient accommodations.

23. Policies and procedures for entry into accommodations of the timeshare plan under authority granted by the association for the purpose of cleaning, maid service, maintenance and repair, including emergency repairs and for the purpose of abating a nuisance or a known or suspected dangerous or unlawful activity.

§ 32-2197.07 Examination of plan by commissioner; fees

A. The commissioner shall examine any timeshare plan offered for sale or lease in this state or located in this state and shall make public his findings.

B. The commissioner may physically inspect any timeshare plan offered for sale or lease in this state or located in this state.

C. An initial filing fee of twenty dollars per interest with a maximum fee of not more than one thousand dollars shall accompany the notice of intention filed pursuant to section 32-2197.02. A filing fee as established by rule shall accompany the application to amend the timeshare public report required in section 32-2197.04.

D. The developer of the timeshare plan shall bear the total cost of travel and subsistence expenses incurred by the department in the examination, in addition to the initial filing fee provided for in this section, on the basis of actual cost to the department.

§ 32-2197.08 Issuance of public report and amended public report by commissioner on timeshare plan; denial of issuance; additional information; use of another state's public report

A. On examination of a timeshare plan, the commissioner, unless there are grounds for denial, shall approve for use by the developer a public report authorizing the sale or lease of the timeshare interests within the timeshare plan. For all timeshare interests sold in this state, the commissioner shall require the developer to reproduce the public report and furnish each prospective customer with a copy, taking a receipt for each copy. The public report shall be made available to each prospective purchaser in written format either by electronic means or in hard copy. The public report shall include the following:

1. The name and principal address of the owner and developer.

2. A description of the type of timeshare interests being offered.

3. A description of the existing and proposed accommodations and amenities of the timeshare plan, including type and number, any use restrictions and any required fees for use.

4. A description of any accommodations and amenities that are committed to be built, including:

(a) The developer's schedule of commencement and completion of all accommodations and amenities.

(b) The estimated number of accommodations per site that may become subject to the timeshare plan.

5. A brief description of the duration, phases and operation of the timeshare plan.

6. The current annual budget if available or the projected annual budget for the timeshare plan. The budget shall include:

(a) A statement of the amount or a statement that there is no amount included in the budget as a reserve for repairs and replacement.

(b) The projected common expense liability, if any, by category of expenditures for the timeshare plan.

(c) A statement of any services or expenses that are not reflected in the budget and that the developer provides or pays.

7. A description of any liens, defects or encumbrances on or affecting the title to the timeshare interests.

8. A statement that by midnight of the tenth calendar day after execution of the purchase agreement a purchaser may cancel any purchase agreement for a timeshare interest from a developer together with a statement providing the name and street address where the purchaser should mail any notice of cancellation. If, by agreement of the parties through the purchase agreement, the purchase agreement allows for cancellation of the purchase agreement for a period of time exceeding ten calendar days, the public report shall include a statement that the cancellation of the purchase agreement is allowed for that period of time exceeding ten calendar days.

9. A description of any bankruptcies, pending suits, adjudications or disciplinary actions material to the timeshare interests of which the developer has knowledge.

10. Any restrictions on alienation of any number or portion of any timeshare interests.

11. Any current or expected fees or charges to be paid by timeshare purchasers for the use of any amenities related to the timeshare plan.

12. The extent to which financial arrangements have been provided for completion of all promised improvements.

13. If the timeshare plan provides purchasers with the opportunity to participate in any exchange programs, a description of the name and address of the exchange companies and the method by which a purchaser accesses the exchange programs.

14. Any other information that the developer, with the approval of the commissioner, desires to include in the public report.

15. If the developer is offering a multisite timeshare plan, the following information, which may be disclosed in a written, graphic or tabular form:

(a) A description of each component site, including the name and address of each component site.

(b) The number of accommodations and timeshare periods, expressed in periods of use availability, committed to the multisite timeshare plan and available for use by purchasers.

(c) Each type of accommodation in terms of the number of bedrooms, bathrooms and sleeping capacity and a statement of whether or not the accommodation contains a full kitchen. For the purposes of this subdivision, "full kitchen" means a kitchen having a minimum of a dishwasher, range, oven, sink and refrigerator.

(d) A description of amenities available for use by the purchaser at each component site.

(e) A description of the reservation system, including the following:

(i) The entity responsible for operating the reservation system.

(ii) A summary of the rules governing access to and use of the reservation system.

(iii) The existence of and an explanation regarding any priority reservation features that affect a purchaser's ability to make reservations for the use of a given accommodation on a first-reserved, first-served basis.

(f) A description of any right to make any additions, substitutions or deletions of accommodations or amenities and a description of the basis on which accommodations and amenities may be added to, substituted in or deleted from the multisite timeshare plan.

(g) A description of the purchaser's liability for any fees associated with the multisite timeshare plan.

(h) The location and the anticipated relative use demand of each component site in a multisite timeshare plan as well as any periodic adjustment or amendment to the reservation system that may be needed in order to respond to actual purchaser use patterns and changes in purchaser use demand for the accommodations existing at the time within the multisite timeshare plan.

(i) Any other information reasonably required by the commissioner or established by rule that is necessary for the protection of purchasers of timeshare interests in timeshare plans.

(j) Any other information that the developer, with the approval of the commissioner, desires to include in the public report.

16. If a developer offers a nonspecific timeshare interest in a multisite timeshare plan, the information set forth in paragraphs 1 through 14 of this subsection as to each component site.

17. Any other information that the commissioner determines or establishes by rule is necessary to implement the purpose of this article.

B. Except as otherwise provided in this subsection, the requirements prescribed by subsection A of this section apply to a developer's application for approval to use an amended public report for the sale of timeshare interests in a timeshare plan, including an amended public report to disclose and address a material change under section 32-2197.04. A developer may elect to prepare an amended public report for use in the sale of timeshare interests as follows:

1. The developer shall prepare the amended public report and provide a copy of the report to the commissioner with the submission of the application for an amended public report, including any notification required by section 32-2197.04, and shall comply with all other requirements of this article.

2. An amendment filing fee established pursuant to section 32-2197.07 shall accompany the application prescribed by paragraph 1 of this subsection.

3. On receipt of the application and amended public report, the department shall review and, within fifteen business days if the amendment adds less than six new component sites to the timeshare plan or within thirty calendar days if the amendment adds six or more new component sites to the timeshare plan, issue either a certification that the application and amended public report are administratively complete or a denial letter if it appears that the application, amended public report or timeshare plan is not in compliance with all legal requirements, that the applicant has a background of violations of state or federal law or that the applicant or timeshare plan presents an unnecessary risk of harm to the public. If the commissioner has received the application and amended public report but has not issued a certification or a denial letter within the required time period, the application and amended public report are deemed administratively complete.

4. The developer may commence sales or leasing activities as allowed under this article using an amended public report when the commissioner issues a certification of administrative completeness or as of the date the application and amended public report are deemed administratively complete pursuant to paragraph 3 of this subsection. The certification may be issued on paper or electronically.

5. Before or after the commissioner issues a certification of administrative completeness or, if applicable, after the application and amended public report are deemed to be administratively complete pursuant to paragraph 3 of this subsection, the department may examine any public report, timeshare plan or applicant that has applied for or received the certification. If the commissioner determines that the public report, timeshare plan or applicant is not in compliance with any requirement of state law or that grounds exist under this chapter to suspend, deny or revoke a public report, the commissioner may commence an administrative action under section 32-2154, 32-2157 or 32-2197.14. If the developer immediately corrects the deficiency and fully complies with state law, the commissioner shall promptly vacate any action that the commissioner may have commenced pursuant to section 32-2154, 32-2157 or 32-2197.14.

6. The department shall provide forms and guidelines for the submission of the application and amended public report pursuant to this subsection.

C. In the event of denial, suspension or revocation, grounds shall be set forth in writing at the time of denial, suspension or revocation. The commissioner may deny, suspend or revoke the public report on any of the following grounds:

1. Failure to comply with this article or the rules of the commissioner pertaining to this article.

2. The sale or lease would constitute misrepresentation to or deceit or fraud of the purchasers or lessees.

3. Inability to demonstrate that adequate financial or other arrangements acceptable to the commissioner have been made for completion of the timeshare property, installation of all streets, sewers, electric, gas and water utilities, drainage, flood control and other similar improvements included in the offering.

4. The developer, including if an entity, an officer, director, member, manager, partner, owner, trust beneficiary holding ten percent or more beneficial interest, stockholder owning ten percent or more of the stock or other person exercising control of the entity, has:

(a) Been convicted of a felony or misdemeanor involving theft, fraud or dishonesty or involving the conduct of any business or a transaction in real estate, cemetery property, timeshare interests or membership camping campgrounds or contracts.

(b) Been permanently or temporarily enjoined by order, judgment or decree from engaging in or continuing any conduct or practice in connection with the sale or purchase of real estate, cemetery property, timeshare interests, membership camping campgrounds or contracts, or securities or involving consumer fraud or the Arizona racketeering laws.

(c) Had an administrative order entered against him by a real estate regulatory agency or securities regulatory agency.

(d) Had an adverse decision or judgment entered against him involving fraud or dishonesty or involving the conduct of any business in or a transaction in real estate, cemetery property, timeshare interests or membership camping campgrounds or contracts.

(e) Disregarded or violated this chapter or the rules of the commissioner pertaining to this chapter.

(f) Participated in, operated or held an interest in any entity to which subdivision (b), (c), (d), or (e) of this paragraph applies.

5. If within this state, the timeshare property is incompatible with the existing neighborhood and would introduce into a neighborhood a character of property or use that would clearly be detrimental to property values in that neighborhood.

D. If the timeshare property is within an active management area, as defined in section 45-402, the commissioner shall deny issuance of a public report unless the developer has been issued a certificate of assured water supply by the director of water resources and has paid all applicable fees pursuant to sections 48-3772 and 48-3774.01, or unless the developer has obtained a written commitment of water service for the timeshare property from a city, town or private water company designated as having an assured water supply by the director of water resources pursuant to section 45-576.

E. In areas outside of active management areas, if the timeshare property is located in a county that has adopted the provision authorized by section 11-823, subsection A or in a city or town that has enacted an ordinance pursuant to section 9-463.01, subsection O, the commissioner shall deny issuance of a public report unless one of the following applies:

1. The director of water resources has reported pursuant to section 45-108 that the timeshare property has an adequate water supply.

2. The developer has obtained a written commitment of water service for the timeshare property from a city, town or private water company designated as having an adequate water supply by the director of water resources pursuant to section 45-108.

3. The timeshare property was approved pursuant to an exemption authorized by section 9-463.01, subsection K, pursuant to an exemption authorized by section 11-823, subsection B, paragraph 1, pursuant to an exemption granted by the director of water resources under section 45-108.02 and the exemption has not expired or pursuant to an exemption granted by the director of water resources under section 45-108.03.

4. The subdivision received final plat approval from the city, town or county before the requirement for an adequate water supply became effective in the city, town or county, and there have been no material changes to the plat since the final plat approval. If changes were made to the plat after the final plat approval, the director of water resources shall determine whether the changes are material pursuant to the rules adopted by the director to implement section 45-108.

F. In addition to providing to each prospective customer a copy of the public report as required in subsection A of this section, the developer shall also provide to each customer before the close of any transaction information and materials that identify any timeshare exchange companies currently under contract and disclosure statements regarding the use of the timeshare exchange companies, as well as any additional information the commissioner deems appropriate.

G. The commissioner may authorize for use in this state by a developer of a timeshare plan in which all accommodations are located outside of this state a current public report that is issued by another jurisdiction or an equivalent registration and disclosure document that is required before offering a timeshare plan for sale, lease or use and that is issued by another jurisdiction. This authorization does not constitute an exemption from other applicable requirements of this article.

§ 32-2197.09 Rescindable sale or lease

A person shall not sell or lease or offer for sale or lease in this state timeshare interests in a timeshare plan without first obtaining a public report or authorization to conduct pre-sales from the commissioner. Unless exempt, any sale or lease of timeshare interests in a timeshare plan that consists of twelve or more timeshare interests before issuance of the public report or authorization to conduct pre-sales or failure to deliver the public report or evidence of pre-sale authorization renders the sale or lease rescindable by the purchaser or lessee. An action by the purchaser or lessee to rescind the transaction must be brought within three years of the date of the execution of the purchase or lease agreement by the purchaser. In any rescission action, the prevailing party is entitled to reasonable attorney fees as determined by the court.

§ 32-2197.10 Timeshare interest reservations

A. The notice of intent required by section 32-2197.02 and the approval for use of a public report required by section 32-2197.08 are not required for any party to enter into a timeshare interest reservation.

B. Before the approval for use of a public report for a timeshare plan, a deposit may be accepted from a prospective buyer for a timeshare interest reservation if all of the following requirements are met:

1. Before accepting any timeshare interest reservation, the prospective seller shall mail or deliver or provide to the department a hard copy notice or electronic notice as approved by the commissioner of the seller's intention to accept the timeshare interest reservations. The notice shall include:

(a) The name, address and telephone number of the prospective seller.

(b) The name, address and telephone number of any real estate broker retained by the prospective seller to promote the timeshare interest reservation program.

(c) The name and location of the timeshare property for which timeshare interest reservations are to be offered.

(d) The form to be used for accepting timeshare interest reservations subject to approval by the commissioner.

(e) The name and address of the independent third-party escrow or trust account agent responsible for holding the reservation deposits.

2. The reservation deposit for a single timeshare interest shall not exceed twenty percent of the purchase price.

3. Within one business day after a reservation is accepted by the prospective seller, the reservation deposit shall be delivered to an independent third-party escrow or trust account in a federally insured depository. The account may be interest bearing at the direction of either the prospective seller or prospective buyer. Payment of any account fees and payment of interest monies shall be as agreed to between the prospective buyer and prospective seller. All reservation deposits shall remain in the account until cancellation or termination of the timeshare interest reservation or execution of a purchase agreement.

4. Within fifteen calendar days after the prospective seller receives the public report approved for use by the commissioner relating to the reserved timeshare interest, the prospective seller shall provide the prospective buyer with a copy of the public report and a copy of the proposed purchase agreement for the sale of the timeshare interest. The prospective buyer and prospective seller shall have ten business days after the prospective buyer's receipt of the public report and the proposed purchase agreement to enter into a contract for the purchase of the timeshare interest. If the prospective buyer and prospective seller do not enter into a contract for the purchase of the timeshare interest within the ten business day period, the reservation automatically terminates. The prospective seller has no cancellation rights concerning a timeshare interest reservation other than as provided in this subsection.

5. A prospective buyer may cancel a timeshare interest reservation at any time before the execution of a purchase agreement by delivering written notice of termination to the prospective seller as provided in paragraph 9 of this subsection.

6. Within five business days after a timeshare interest reservation has been terminated for any reason, the prospective seller shall refund to the prospective buyer all reservation deposits made by the prospective buyer, including any interest monies earned minus any account fees agreed on, if applicable. The independent third-party escrow account or trust account agent shall refund to the prospective buyer all reservation deposits made by the prospective buyer, including any interest monies earned minus any account fees agreed on if the prospective seller is not available. After the refund, neither the prospective buyer nor the prospective seller has any obligation arising out of the timeshare interest reservation.

7. A prospective buyer may not transfer rights under a reservation without the prior written consent of the prospective seller, and any purported transfer without the consent of the prospective seller is voidable at the sole discretion of the prospective seller.

8. If the department denies an application for a public report on a timeshare plan on which timeshare interest reservations were taken, within five business days after notification by the department, the prospective seller shall notify in writing each prospective buyer who entered into a timeshare interest reservation agreement. The prospective seller shall return any reservation deposits previously taken.

9. All notices required by this section to be given to the department, the prospective buyer or the prospective seller shall be in writing and either hand delivered or sent by certified mail, return receipt requested with postage fully prepaid. Notices sent by mail are deemed delivered on the earlier of actual receipt, as evidenced by the delivery receipt, or seven calendar days after being deposited in the United States mail.

10. Each timeshare interest reservation form shall contain the following statement in conspicuous type above the purchaser's signature line:

The Arizona department of real estate has not inspected or approved this timeshare property and no public report has been issued for the timeshare plan. No offer to sell may be made and no offer to purchase may be accepted before issuance of a public report or pre-sale authorization for the timeshare plan.

C. The commissioner may deny, suspend or revoke authorization to accept timeshare interest reservations under this section to any person who has violated any provision of this chapter.

§ 32-2197.11 Developer supervisory duties

The developer shall supervise, manage and control all aspects of the offering of the timeshare plan, including promotion, advertising, contracting and closing. The developer is responsible for each timeshare plan registered by the developer with the department and for the actions of any sales agent or managing entity used by the developer in the offering or selling of any registered timeshare plan. Any violation of this article that occurs during the offering activities shall be deemed to be a violation by the developer as well as by the sales agent or managing entity who actually committed the violation. The developer is responsible for the actions of the association and managing entity only while they are subject to the developer’s control, as provided in the timeshare instruments or by law.

§ 32-2197.12 Blanket encumbrance; lien; alternative assurance

Excluding any encumbrance placed against the purchaser’s timeshare interest securing the purchaser’s payment of purchase money financing for the purchase, the developer is not entitled to the release of any monies placed in escrow under section 32-2197.05 with respect to each timeshare interest and any other property or rights to property appurtenant to the timeshare interest, including any amenities represented to the purchaser as being part of the timeshare plan, until the developer has provided satisfactory evidence to the commissioner of one of the following:

1. The timeshare interest together with any other property or rights to property appurtenant to the timeshare interest, including any amenities represented to the purchaser as being part of the timeshare plan, are free and clear of any of the claims of the developer, any owner of the underlying fee, a mortgagee, judgment creditor or other lienor or any other person having a blanket encumbrance against the timeshare interest or appurtenant property or property rights.

2. The developer, any owner of the underlying fee, a mortgagee, judgment creditor or other lienor or any other person having a blanket encumbrance against the timeshare interest or appurtenant property or property rights, including any amenities represented to the purchaser as being part of the timeshare plan, has recorded a subordination and notice to creditors document in the appropriate public records of the jurisdiction in which the timeshare interest is located. The subordination document shall expressly and effectively provide that the interest holder’s right or blanket encumbrance does not adversely affect and is subordinate to the rights of the owners of the timeshare interests in the timeshare plan regardless of the date of purchase, from and after the effective date of the subordination document.

3. The developer, any owner of the underlying fee, a mortgagee, judgment creditor or other lienor or any other person having a blanket encumbrance against the timeshare interest or appurtenant property or property rights, including any amenities represented to the purchaser as being part of the timeshare plan, has transferred the subject accommodations or amenities or all use rights to the accommodations or amenities to a nonprofit organization or owners’ association to be held for the use and benefit of the owners of the timeshare plan. The organization or association shall act as a fiduciary to the purchasers, if the developer has transferred control of the organization or association to the owners or does not exercise voting rights in the organization or association with respect to the subject accommodations or amenities. Before the transfer, any blanket encumbrance against the accommodation or facility shall be made subject to a subordination and notice to creditors instrument pursuant to paragraph 2.

4. Alternative arrangements have been made that are adequate to protect the rights of the purchasers of the timeshare interests and approved by the commissioner.

§ 32-2197.13 Hearing on denial of public report

Any applicant objecting to the denial of a public report may, within thirty days after receipt of the order of denial, file a written request for a hearing. The commissioner shall hold the hearing within twenty days thereafter unless the party requesting the hearing requests a postponement. If the hearing is not held within twenty days after a request for a hearing is received, plus the period of any such postponement, or if a proposed decision is not rendered within forty-five days after submission, the order of denial shall be rescinded and a public report issued.

§ 32-2197.14 Investigations; orders; hearings

A. The commissioner, on the commissioner's own motion, or if the commissioner has received a complaint and has satisfactory evidence that the owner, agent or developer is violating any provision of this article or rules of the commissioner or has engaged in any unlawful practice as defined in section 44-1522 concerning the sale of timeshare interests or deviated from the provisions of the public report, may investigate the timeshare property and examine the books and records of the owner, agent or developer. For the purpose of examination, the owner, agent or developer shall keep and maintain records of all sales transactions and monies received pursuant to such sales transactions and make them accessible to the commissioner upon reasonable notice and demand.

B. The commissioner may conduct an investigation, issue a summary order as provided in section 32-2157 or hold a public hearing, on the commissioner's own motion, or if the commissioner has received a complaint and has satisfactory evidence that:

1. A person has violated any of the provisions of this article or the rules of the commissioner.

2. A person has engaged in any unlawful practice as defined in section 44-1522 concerning the sale of timeshare interests.

3. A person has deviated from the provisions of the public report.

4. The owner, agent, developer, officer or partner, developer trust beneficiary or, if a corporation, any stockholder owning ten per cent or more of the stock in such corporation has participated in, operated or held an interest in any land development company which is bankrupt or has been indicted for fraud or against whom an information for fraud has been filed or has been convicted of a felony, before or after the commissioner issues the public report.

C. After such hearing, the commissioner may issue such order or orders as the commissioner deems necessary to protect the public interest and ensure compliance with the law, or rules or public report, or may bring an action in any court of competent jurisdiction against the person to enjoin the person from continuing such violation or engaging in such violation or doing any act or acts in furtherance of such violation. The court may make such orders or judgments, including the appointment of a receiver, as are necessary to prevent the use or employment by a person of any unlawful practices or which are necessary to restore to any person in interest any monies or property, real or personal, which has been acquired by means of any practice declared to be unlawful in this article.

D. For any timeshare investigation made under this section of an out-of-state timeshare plan, or any in-state timeshare plan to which the commissioner issues any order necessary to protect the public interest and ensure compliance with law, rules or the public report, the developer shall reimburse the department for travel and subsistence expenses incurred by the department.

§ 32-2197.15 Order; appointment of receiver; writ of ne exeat

A. If it appears to the commissioner that a person has engaged in or is engaging in a practice declared to be unlawful by this article, and that such person is concealing assets or self, or has made arrangements to conceal assets or is about to leave this state, the commissioner may apply to the superior court, ex parte, for an order appointing a receiver of the assets of such person or for a writ of ne exeat, or both.

B. The court, upon receipt of an application for the appointment of a receiver or for a writ of ne exeat, or both, shall examine the verified application of the commissioner and such other evidence that the commissioner presents to the court. If satisfied that the interests of the public require the appointment of a receiver or the issuance of a writ ne exeat without notice, the court shall issue an order appointing the receiver or issue the writ, or both. If the court determines that the interests of the public will not be harmed by the giving of notice, the court shall set a time for a hearing and require such notice be given as the court deems satisfactory.

C. If the court appoints a receiver without notice, the court shall further direct that a copy of the order appointing a receiver be served upon the person engaged in or engaging in a practice declared to be unlawful under this article by delivering such order to the last address of the person which is on file with the real estate department. The order shall inform the person that he has the right to request a hearing within ten days of the date of the order, and if requested, the hearing shall be held within thirty days from the date of the order.

§ 32-2197.16 Separate disclosures

A. The purchase agreement must contain a separate disclosure document that discloses all of the following in at least ten-point type:

1. If the purchaser signs the purchase agreement, the purchaser has ten days to cancel the purchase agreement without a penalty.

2. If the purchaser signs the purchase agreement, the purchaser may be responsible for paying maintenance fees, taxes and other assessments every year for the duration of ownership.

3. Timeshares are not investments.

4. The purchase agreement is final and any conflicting statements made by the seller are not part of the purchase agreement.

5. The purchaser has the right to file a consumer complaint with the attorney general.

B. Before entering into a purchase agreement, the seller must provide the purchaser with a separate disclosure document to adequately inform the purchaser of the purchaser's actual and potential liabilities under the purchase agreement. At a minimum, this separate disclosure document must conspicuously disclose all of the following:

1. The duration of the timeshare agreement entered into by the purchaser or whether the agreement has no set duration.

2. A loan estimate of the total potential financial obligation of the purchaser during the first year of ownership that includes additional charges to which the purchaser may be subject during the first year of ownership, including all potential assessments. The disclosure shall be as follows:

(a) If the maximum amount of the first year's assessments is known at the time of purchase, the disclosure must disclose the maximum amount of these assessments and the assessments levied for each of the previous three years, if available.

(b) If the maximum amount of the first year's assessments is unknown at the time of purchase, the disclosure must provide the purchaser with the following:

(i) Notice that the purchaser will be required to pay assessments in addition to the disclosed purchase payment and that the amount of those assessments is currently unknown.

(ii) A statement disclosing the assessments levied for each of the previous three years, if available, and a loan estimate of the first year's assessments that is at least the highest amount assessed during any of the previous three years based on the timeshare interest being offered.

(iii) Unless the purchase agreement provides for a limit on assessments during the first year of ownership, an affirmative statement that there is no limit on the assessments that the purchaser may be charged in the first year of ownership.

C. If there are blank spaces in the purchase agreement or the disclosure documents prescribed by this section, the contract is voidable.

D. The purchaser must separately initial each disclosure prescribed by subsection A of this section, sign the separate disclosure prescribed by subsection B of this section and verify that the purchaser has read and understands the information presented in the separate disclosures. An initialed copy of the separate disclosure prescribed by subsection A of this section and a signed copy of the separate disclosure prescribed by subsection B of this section shall be provided to the purchaser for the purchaser's records at the time of signing, and the seller shall keep a signed copy of the separate disclosures.

E. The commissioner may recommend or require that the separate disclosures be in a specified form. The form must contain the information required by this section.

§ 32-2197.17 Advertising and promotional requirements; telemarketing and promotional employees; presentations and tours, drawings and contests; commissioner's authority; disclosures

A. Within ten days after a request by the commissioner, the developer shall file with the commissioner a copy of any promotional and advertising material that will be used in connection with the sale, lease or use of timeshare interests. If filing is required, the commissioner shall approve or deny the use of any material within fifteen days of receiving all information and documents. If the commissioner denies the use of promotional and advertising material, specific grounds shall be set forth in writing. The commissioner may grant provisional approval for promotional and advertising material if the developer agrees to correct any deficiencies. Any proposed advertising not requested by the commissioner for review may be filed for review and approval by the commissioner.

B. Any advertising, communication or sales literature of any kind, including oral statements by salespeople or any other person, shall not contain:

1. Any untrue statement of material fact or any omission of material fact which would make such statements misleading in light of the circumstances under which such statements were made.

2. Any statement or representation that the timeshare interests are offered without risk or that loss is impossible.

3. Any statement or representation or pictorial presentation of proposed improvements or nonexistent scenes without clearly indicating that the improvements are proposed and the scenes do not exist.

C. All promotional and advertising material shall be consistent with the information contained in the notice of intention pursuant to section 32-2197.02 and the public report pursuant to section 32-2197.08 and shall clearly indicate that the material is being used to promote the sale, lease or use of an interest in a timeshare plan. An interest in a timeshare plan, vacation ownership plan, fractional ownership plan, vacation club or other term or terms may be approved by the commissioner on a case by case basis after the commissioner finds that such term or terms clearly disclose to prospective purchasers the nature of the timeshare interest being offered.

D. If it appears to the commissioner that any person is engaging or has engaged in advertising or promotional practices in violation of this article, the commissioner may hold a hearing as a contested case under title 41, chapter 6, article 10 and issue such order or orders as the commissioner deems necessary to protect the public interest, or the commissioner may bring an action in any court of competent jurisdiction against such person to enjoin that person from continuing such violation.

E. The commissioner may adopt such written guidelines as the commissioner deems necessary to protect the public interest and to assure that all advertising and promotional practices with respect to land subject to the provisions of this article are not false or misleading.

F. It is unlawful for any owner, developer, agent or employee of any timeshare plan or other person with intent directly or indirectly to sell or lease timeshare interests subject to the provisions of this article to authorize, use, direct or aid in any advertising, communication, sales literature or promotional practice which violates this section.

G. This section does not apply to the owner or publisher of a newspaper or magazine or to any other publication of printed matter in which such advertisement appears or to the owner or operator of a radio or television station which disseminates such advertisement if the owner, publisher or operator has no knowledge of the intent, design or purpose of the advertiser.

H. A telemarketing or any other promotional employee involved in activities whose primary duties are limited to soliciting initial interest, scheduling or confirming persons for appointments, handing out promotional literature or explaining promotional incentives and related duties is not required to hold a real estate license. To the extent that a telemarketing or any other promotional employee is engaged in soliciting interest in the actual purchase, lease or use of timeshare interests, the employee shall be employed and supervised by a real estate broker who is licensed in this state subject to the following:

1. Supervision of unlicensed telemarketing and other promotional employees shall be performed directly by a broker or a licensed real estate salesperson under the supervision of the broker.

2. An unlicensed employee in the course of the employee's duties shall not engage in discussions about any details or benefits of the property transaction being promoted, including dimensions of the property, contract terms, discounts, exchange benefits, price and financing.

3. The amount and manner in which an unlicensed employee is individually compensated may not be based, in whole or in part, on the completion of a timeshare transaction.

4. For the purposes of the supervision required under this subsection, a developer may:

(a) Operate its own promotional program and provide supervision of its unlicensed telemarketing or other promotional employees through its designated broker.

(b) Establish a branch office that is managed by a licensed real estate salesperson under the supervision of the developer's designated broker and who provides supervision of the developer's unlicensed telemarketing or other promotional employees.

(c) Pursuant to a written promotion agreement:

(i) Contract with an unlicensed telemarketer or any other promoter if the agreement requires the developer's designated broker to provide supervision of the telemarketer's or promoter's unlicensed telemarketing or other promotional employees.

(ii) Contract with a telemarketer or any other promoter who is licensed as a broker in this state if the agreement requires the designated broker of the telemarketer or other promoter to provide supervision of unlicensed telemarketing or other promotional employees.

5. The commissioner may exempt from the supervision requirements of this section a timeshare developer that is not based in this state and that desires to conduct telemarketing solicitations of residents of this state or a developer that is based in this state but that desires to use the services of a telemarketer that is not located in this state to conduct telemarketing solicitations of residents of this state on written application containing information about the developer, the timeshare plan and the marketing procedures that will be used. The commissioner may grant such an exemption on a showing that supervision equivalent to that required under this section exists. If the developer does not adhere to the marketing procedures submitted with its application for exemption or if there is any material change in the information submitted with the application, the exemption may be denied or revoked.

I. A timeshare developer may hold a drawing or contest to solicit interest in or promote timeshare interests if all of the following requirements are met:

1. The timeshare plan has in effect a current public report.

2. The developer is not the subject of an ongoing investigation by the commissioner, unless the commissioner in the commissioner's discretion gives written permission to the developer to hold a drawing or contest.

3. The extent to which the drawing or contest is limited in time and scope and the geographic location in which eligible recipients reside are fully disclosed.

4. The estimated odds of winning and all other material terms of the drawing or contest are fully disclosed to all participants.

5. No fee is charged to any person who participates in a drawing or contest.

6. No participant in a drawing or contest, as a condition of participation, is required to attend a timeshare sales presentation or take a site tour.

7. The developer is in compliance with all applicable federal, state and local laws involving drawings or contests.

8. The developer is responsible at all times for the lawful and proper conduct of any drawing or contest.

9. The developer submits the details of the drawing or contest, including the method of awarding any prize, to the department for review and approval at least thirty days before the drawing or contest is offered.

J. A premium may be given to persons who visit timeshare properties or who attend a timeshare presentation. No person is required to attend any presentation or tour for longer than one hundred twenty minutes to receive the premium. The developer shall make complete and clear written disclosure that minimally includes detailed information about any premium offered as an incentive, including its estimated retail value and any conditions that must be met or limitations that apply to receive the premium, and about the one hundred twenty minute limit placed on a site tour or sales presentation to each timeshare prospect before any presentation or tour.

K. A developer or a representative of a developer conducting timeshare presentations or tours may offer a timeshare prospect a redemption certificate in return for participation in a presentation or tour if all of the following requirements are met:

1. If for any reason the goods or services are not provided in the time frame stated in or are not as represented in the redemption certificate and the recipient provides proof of timely satisfaction of all conditions and requirements for redemption, the developer does the following:

(a) Within fifteen days of receipt of notice from the timeshare prospect of the proven nonreceipt of the goods or services, provides the promised goods or services or a reasonable substitute of equal or greater value.

(b) If unable to provide the goods or services or a reasonable substitute within the fifteen day period, immediately pays the redemption certificate recipient an amount equal to the estimated retail value of the premium as advertised in the certificate promotional material or, if the value was not advertised, pays the estimated retail value of the premium.

2. All advertising and offers referring to redemption certificates shall clearly and conspicuously set forth any terms, conditions, restrictions or limitations governing the use of the certificates.

L. The disclosure required by subsection C of this section shall be provided as part of the initial advertising promotion contact with a prospective purchaser. Any other disclosures required pursuant to this section shall be provided before the prospective purchaser is required to pay any money or attend a sales presentation pursuant to the advertising promotion. The disclosures shall be given to each prospective purchaser on only one piece of advertising for each advertising promotion, including advertising promotions that consist of multiple related pieces. If advertising promotions are approved as multiple related pieces, the advertising promotion must be used in that form. If the advertising promotion contains terms and conditions the disclosures required in this section shall be included on any piece containing these terms and conditions. Repetitive filings of the same advertising material are not required.

§ 32-2197.18 Recording of actions

A. If the commissioner issues a cease and desist order, obtains a court order enjoining further sales, issues an order of prohibition or suspends approval of a timeshare plan, the action shall be recorded in the book of deeds in the office of the county recorder in any county in which the timeshare property is located.

B. In the event of revocation of any of the orders which require recording in subsection A, an order of release shall be recorded in the same manner.

§ 32-2197.19 Civil liabilities; prohibitions; limitations

A. If any part of the notice of intention filed pursuant to section 32-2197.02 contains an untrue statement of a material fact or omits a material fact required to be stated in such notice, the developer or agent is liable as provided in this section to any person who acquires a timeshare interest in the timeshare plan covered by the notice of intention during the period the notice of intention remained uncorrected, unless it is proved that at the time of such acquisition the person acquiring the timeshare interest knew of such untruth or omission.

B. A developer or agent who sells or leases a timeshare interest in a timeshare plan in violation of section 32-2197.09 or by means of a public report which contains an untrue statement of a material fact, or omits a material fact required to be stated in such report, is liable to the purchaser of such timeshare interest as provided in this section.

C. No developer or agent shall, in selling or leasing, or offering to sell or lease, any timeshare interest in a timeshare plan:

1. Employ any device, scheme or artifice to defraud.

2. Obtain money or property by means of a material misrepresentation with respect to any information included in the notice of intention or the public report or with respect to any other information pertinent to the timeshare interest or timeshare plan and upon which the purchaser relies.

3. Engage in any transaction, practice or course of business which operates or would operate as a fraud or deceit upon a purchaser.

D. Damages in any suit brought pursuant to this section are the difference between the amount paid for the timeshare interest, together with the reasonable cost of improvements to such timeshare interest, and whichever of the following amount is less:

1. The value of the timeshare interest and improvements as of the time such suit was brought.

2. The price at which the timeshare interest was disposed of in a bona fide market transaction prior to the suit.

3. The price at which the timeshare interest was disposed of in a bona fide market transaction after suit was brought, but prior to judgment.

E. In any action in which a violation of this section is established, the purchaser is also entitled to recover reasonable attorney fees as determined by the court. If a violation is not established, the court may award reasonable attorney fees to the defendant.

F. Every person who becomes liable to make any payment pursuant to this section may recover contribution as in cases of contract from any person who, if sued separately, would have been liable to make the same payment.

G. The amount recoverable pursuant to this section shall not exceed the sum of the purchase price of the timeshare interest, the reasonable cost of improvements installed by the purchaser and reasonable court costs and attorney fees.

H. This section does not preclude any other remedies that may exist at law or in equity.

I. An action shall not be maintained to enforce any liability created pursuant to subsection A or B of this section unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence. An action shall not be maintained to enforce any liability created pursuant to subsection C of this section unless brought within two years after the violation upon which it is based. Any such action under subsection C of this section shall not be brought by a purchaser more than three years after the sale or lease to such purchaser.

§ 32-2197.20 Civil penalty

A. Any developer who is subject to the jurisdiction of the department and who has violated any provision of this article or any rule or order adopted by the commissioner, who has deviated substantially from the provisions of a public report or who has engaged in any unlawful practices defined in section 44-1522 with respect to the sale or lease of timeshare interests may be assessed a civil penalty by the commissioner, after a hearing, in an amount of at least one thousand dollars and not more than five thousand dollars per infraction.

B. Actions to recover penalties pursuant to this section shall be brought by the attorney general in the name of this state in the superior court in the county in which the violation occurred or in a county in which the commissioner maintains an office.

§ 32-2197.21 Payment of finder fees; limits; prohibited activities; records; definition

A. Notwithstanding sections 32-2155, 32-2163 and 32-2165 or any other provision of this chapter, a developer or managing entity may pay a finder fee to a person who is not licensed pursuant to this chapter and who owns a timeshare interest in the developer’s timeshare plan or in the timeshare plan managed by that managing entity.

B. A finder fee paid pursuant to this section shall not exceed one thousand dollars in credit or nonmonetary compensation during any twelve month period.

C. This section does not permit a person who is not licensed pursuant to this chapter to advertise or promote the person’s services in procuring or assisting to procure prospective timeshare interest purchasers.

D. The developer or managing entity shall keep records of all finder fees paid pursuant to this section for three years after the payment is made.

E. For purposes of this section, "finder fee" means credit or nonmonetary compensation paid to a person who is not licensed pursuant to this chapter, who owns a timeshare interest and who provides the name and address of a prospective purchaser to the developer or managing entity of the timeshare plan in which the owner previously purchased a timeshare interest.

§ 32-2197.22 Exemptions; disclosures; exempt communications

A. Sections 44-1841 and 44-1842 do not apply to a timeshare plan that has been issued a timeshare public report pursuant to this article or exempted by special order of the commissioner.

B. A person is exempt from this article if any of the following applies:

1. The person is either an owner of a timeshare interest or a real estate broker who represents an owner of a timeshare interest if the owner acquired the timeshare interest for the owner's own use and occupancy and offers it for resale.

2. The person is a managing entity or an association or a designated agent of a managing entity or association if all of the following apply:

(a) The entity or association is not a developer of a timeshare plan.

(b) The person solely acts as an association or is under a contract with an association to offer or sell a timeshare interest transferred to the association through foreclosure, deed or gratuitous transfer if done in the regular course of, or incident to, the management of the association for the management's account in the timeshare plan.

(c) The managing entity or the association provides to each purchaser who is not an existing owner in the timeshare plan, the following disclosures before execution of the purchase agreement:

(i) The name and address of the timeshare plan and of the managing entity of the timeshare plan.

(ii) The following statement in conspicuous type located before the disclosure required by item (vi) of this subdivision:

The current year’s assessment for common expenses allocable to the timeshare interest you are purchasing is $_______. This assessment, which may be increased periodically by the managing entity of the timeshare plan, is payable in full each year on or before ________. This assessment (includes/does not include) yearly ad valorem real estate taxes that (are/are not) billed and collected separately.

(iii) If ad valorem real property taxes are not included in the current year’s assessment for common expenses, the following statement must be in conspicuous type located immediately after the disclosure required by item (ii) of this subdivision:

The most recent annual assessment for ad valorem real estate taxes for the timeshare interest you are purchasing is $______.

(iv) If there are any delinquent assessments for common expenses or ad valorem taxes outstanding with respect to the timeshare interest in question, the following statement must be in conspicuous type located immediately after the disclosure required by items (ii) and (iii) of this subdivision:

A delinquency in the amount of $_______ for unpaid common expenses or ad valorem taxes currently exists with respect to the timeshare interest you are purchasing, together with a per diem charge of $_______ for interest and late charges.

(v) The following statement in conspicuous type located immediately after the disclosure required by items (ii), (iii) and (iv) of this subdivision:

Each owner is personally liable for the payment of the owner's assessments for common expenses, and failure to timely pay these assessments may result in restriction or loss of your use and ownership rights. There are many important documents relating to the timeshare plan that you should review before purchasing a timeshare interest, copies of which are available from the association or the managing entity on request, including the declaration of condominium or covenants and restrictions, the association articles and bylaws, the current year’s operating and reserve budgets and any rules affecting the use of timeshare plan accommodations and facilities.

(vi) The year in which the purchaser will first be entitled to occupancy or use of a timeshare period associated with the timeshare interest that is the subject of the resale purchase agreement.

3. The person offers a timeshare plan in a national publication or by electronic media, as determined by the commissioner or as provided by rule, that is not directed to or targeted to any individual located in the state. For purposes of this paragraph, "national publication" or "electronic media" means publications or media circulated, distributed and broadcast on a regional or national basis to residents of the United States and foreign countries. National publication or electronic media includes radio, newspapers, television, the internet and other media that is not intentionally directed to or targeted to individuals located in this state. The sending of a direct solicitation or electronic mail message to the internet address of an individual known to be located in this state is not an offer through a national publication or electronic media.

4. The person has acquired twelve or more timeshare interests in one or more voluntary or involuntary transactions and subsequently conveys, assigns or transfers twelve or more of the timeshare interests received to a single purchaser in a single transaction during the preceding twelve month period.

C. The following are exempt communications from the provisions of this article:

1. Any stockholder communication including an annual report or interim financial report, proxy material, a registration statement, a securities prospectus, a registration, a property report or other material required to be delivered to a prospective purchaser by an agency of any state or the federal government.

2. Any oral or written statement disseminated by a developer to broadcast or print media, other than paid advertising or promotional material, regarding plans for the acquisition or development of timeshare property. Any rebroadcast or any other dissemination of such oral statements to a prospective purchaser by a seller in any manner or any distribution of copies of newspaper or magazine articles or press releases or any other dissemination of written statements to a prospective purchaser by a seller in any manner constitutes an advertisement and is not an exempt communication.

3. Any advertisement or promotion in any medium to the general public if the advertisement or promotion clearly states that it is not an offer in any jurisdiction in which any applicable registration requirements have not been fully satisfied.

4. Any audio, written or visual publication or material relating to the availability of any accommodations for transient rental if a sales presentation is not a requirement for the availability of the accommodations and if the failure of any transient renter to take a tour of a timeshare property or attend a sales presentation does not result in any reduction in the level of services that would otherwise be available to the transient renter.

5. Any billboard or other sign that is affixed to real or personal property and that is not disseminated by other than visual means to any prospective purchaser and that does not suggest or invite any action on the part of the prospective purchaser.

D. The following communications are exempt from this article if the communications are delivered to any person who has previously executed a contract for the purchase of or is an existing owner of a timeshare interest in a timeshare plan:

1. Any communication addressed to and relating to the account of any person who has previously executed a contract for the sale or purchase of a timeshare interest in a timeshare plan relating to the communication.

2. Any audio, written or visual publication or material relating to an exchange company or exchange program provided to an existing member of the exchange company or exchange program.

3. Any communication by a developer to encourage a person who has previously acquired a timeshare interest from the developer to acquire additional use or occupancy rights or benefits or additional timeshare interests offered by the same developer.

§ 32-2197.23 Power of commissioner to exempt timeshare plans

A. The commissioner may by special order exempt from the provisions of this article timeshare plans upon written petition and upon a showing by the petitioner, satisfactory to the commissioner, that compliance with the provisions of this article is not essential to the public interest or for the protection of purchasers by reason of the special characteristics of the timeshare plan.

B. Special orders issued pursuant to this section shall relate to specific timeshare plans.

C. A petition filed under this section shall be accompanied by an initial fee of three hundred dollars. A fee is not returnable irrespective of the nature of the action upon the petition.

§ 32-2197.24 Applicability of article

A. This article applies to all of the following:

1. A timeshare property located in this state.

2. Timeshare plans with an accommodation or component site in this state if those timeshare plans are sold or offered to be sold to any individual located in this state.

3. Timeshare plans without an accommodation or component site in this state if the timeshare plans are sold or offered to be sold to any individual located in this state.

B. This article does not apply to the following:

1. An exchange program except as provided in subsection C.

2. Timeshare plans consisting of fewer than twelve timeshare interests whether or not an accommodation is located in this state.

3. Timeshare plans the use of which extends over any period of less than three years.

4. Timeshare plans, whether or not an accommodation is located in this state, under which the prospective purchaser’s total financial obligation will be less than one thousand five hundred dollars during the entire term of the timeshare plan.

C. A method, arrangement or procedure that meets the definition of an exchange program pursuant to section 32-2197 shall be regulated as a timeshare plan in accordance with this article if the purchaser's total contractual financial obligation exceeds three thousand dollars for any individual, recurring timeshare period.

Article 10 Membership Camping

§ 32-2198 Unlawful offer or sale of membership camping contract

It is unlawful for any person to offer to sell or to sell within or from this state a membership camping contract unless a final membership camping public report has been issued by the commissioner. Any sale of a membership camping contract before the issuance of the final public report is voidable by the purchaser.

§ 32-2198.01 Application for membership camping public report; signature; amendment

A. An application for a membership camping public report shall contain the following documents and information:

1. The name and address of the membership camping operator.

2. A copy of the articles of incorporation, partnership agreement or joint venture agreement and the camping club association bylaws as contemplated or currently in effect.

3. A list of all officers and directors or persons occupying a similar status of the membership camping operator including their names, addresses and occupations during the last five years.

4. A list of material affiliates of the membership camping operator, including the names and addresses of partners, officers, directors and persons with a direct or indirect interest of ten per cent or more in the membership camping operator.

5. A list of all owners of over ten per cent of the voting stock of the membership camping operator, except that this list is not required if the membership camping operator is a reporting company under the securities and exchange act of 1934.

6. Copies of forms of all advertisements intended to be used in connection with the offer or sale of membership camping contracts within this state.

7. A copy of each type of membership camping contract to be sold, a description of the purchase price of each type and, if the price varies, the reason for the variance.

8. A copy of any conditional use permit or any other major use permits indicating approval of the project by this state or a political subdivision of this state for each of the membership camping operator's camping projects located in this state. If the membership camping operator has no projects in this state, the same documents shall be provided for all out of state projects for which membership contracts are to be sold or offered for sale in this state.

9. The financial statements of the membership camping operator prepared in accordance with generally accepted accounting principles and audited by an independent certified public accountant.

10. A statement of the total number of membership camping contracts intended to be sold in this state and the method used to determine this number including a statement of commitment that this total number will not be exceeded unless it is disclosed by an amendment to the registration.

11. If membership camping contracts are sold with different privileges or durations, a list of each type of membership camping contract and the approximate number of each type to be sold.

12. A copy of the agreement, if any, between the operator and any person owning, controlling or managing the campground.

13. The names of any other states or foreign countries in which an application for registration of the membership camping operator or the membership camping contract or any similar document has been filed.

14. Complete information concerning any adverse order, judgment or decree involving forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like conduct which has been entered by a court or administrative agency in connection with a campground or other business operated by the applicant or in which the applicant has or had an interest at the time of the acts which led to the order, judgment or decree.

15. A current title report which is signed and dated not more than thirty days before receipt by the commissioner and which provides a true statement of the condition of the title to the campground property, including all encumbrances on the property.

16. A statement on the provisions that have been made for permanent access and provisions, if any, for health department approved sewage and solid waste collection and disposal and public utilities, if any, in the proposed campground, including water, electricity, gas and telephone facilities.

17. A statement of the provisions, if any, limiting the use or occupancy of the campground, together with copies of any restrictive covenants affecting all or part of the campground.

18. A true statement of the approximate amount of indebtedness which is a lien on the campground or any part of the campground and which was incurred to pay for the construction of any on-site or off-site improvement or any community or recreational facility.

19. A true statement or reasonable estimate, if applicable, of the amount of any indebtedness which has been or is proposed to be incurred by an existing or proposed special district, entity, taxing area or assessment district within the boundaries of which the campground or any part of the campground is located, and which is to pay for the construction or installation of any improvement or to furnish community or recreational facilities to the campground, and which amounts are to be obtained by ad valorem tax or assessment, or by a special assessment or tax on the campground or any part of the campground.

20. A true statement as to the approximate amount, if any, of annual taxes, special assessments or fees to be paid by the membership camping contract owner for the proposed annual maintenance of common facilities in the campground.

21. A true statement of assurances for the installation of improvements, such as roads and utilities, and approval by the political subdivision having authority.

22. A true statement of provisions made for financing any community, recreational or other facilities to be included in the offering or represented as being in the offering. The statement shall include a trust agreement or other evidence of assurances for delivery of such facilities and a statement of the provisions, if any, for the continued maintenance of the facilities.

23. A true statement of the nature of any improvements to be installed or represented to be installed, the estimated schedule for completion and the estimated costs related to these improvements which will be borne by membership camping contract owners in the campground.

24. A true statement of the membership camping operator's experience in the membership camping business, including the number of years the operator has been in the membership camping business.

25. A true statement of the nature of the purchaser's right or license to use the membership camping operator's property or facilities.

26. The location of each of the membership camping operator's parks and a brief description for each park of the significant facilities then available for use by purchasers and those which are represented to purchasers as being planned, together with a brief description of any significant facilities that are or will be available to nonpurchasers or nonmembers. As used in this paragraph "significant facilities" includes campsites, swimming pools, tennis courts, recreation buildings, rest rooms and showers, laundry rooms and trading posts or grocery stores.

27. A true statement of the membership camping operator's ownership of or other right to use the camping properties represented to be available for use by purchasers, together with the duration of any lease, license, franchise or reciprocal agreement entitling the membership camping operator to use the property, and any material provisions of any agreements which restrict a purchaser's use of the property.

28. A copy of the rules, restrictions or covenants regulating the purchaser's use of the membership camping operator's properties, including a statement of whether and how the rules, restrictions or covenants may be changed.

29. A description of any restraints on the transfer of the membership camping contract.

30. A true statement of the policies relating to the availability of camping sites and whether reservations are required.

31. A true statement of any grounds for forfeiture of a purchaser's membership camping contract.

32. Any other information, documents and certificates as the commissioner may reasonably require to clarify or ascertain the accuracy of the information required by this section.

B. The application shall be signed by the membership camping operator, an officer or general partner of the membership camping operator or by another person holding a power of attorney for this purpose from the membership camping operator. If the application is signed pursuant to a power of attorney, a copy of the power of attorney or the resolution authorizing the signature shall be included with the application.

C. The application must be submitted on a form prescribed by the commissioner with the application fee.

D. An application for registration to offer to sell or sell membership camping contracts shall be amended when a material change to the information previously filed occurs.

§ 32-2198.02 Issuance of public report; representations prohibited

A. On examination of a membership campground, the commissioner, unless there are grounds for denial, shall issue to the owner or operator a public report authorizing the sale in or from this state of membership camping contracts. The report shall contain the data obtained in accordance with section 32-2198.01 and any other information which the commission determines is necessary to implement the purposes of this article. The commissioner shall require the owner or operator to reproduce the report and furnish each purchaser with a copy, taking a receipt. The owner and licensed broker shall each retain a receipt for at least five years from the date of its taking.

B. The issuance of a public report is not deemed to be an endorsement by the commissioner of the membership camping contract, the operator or the campground. It is unlawful for a person to make or use any statement or promotional device which tends to indicate that issuance constitutes an endorsement.

§ 32-2198.03 Exemptions

A. The following transactions are exempt from the provisions of section 32-2198:

1. An offer, sale or transfer by any one person of not more than one membership camping contract in any twelve month period any agent for the person, participating in more than one transaction in a twelve-month period is not exempt from registration as a membership camping salesperson under this chapter if he receives a commission or similar payment for the sale or transfer.

2. An offer or sale by a government or subdivision of a government agency.

3. An offer, sale or transfer by a membership camping operator of a membership camping contract previously authorized if the offer, sale or transfer constitutes a transfer to an owner other than the original owner of the contract.

B. The commissioner may by special order exempt from the provisions of section 32-2198 the offer for sale or the sale of membership camping contracts on written petition and a showing by the petitioner satisfactory to the commissioner that compliance with this chapter is not essential to the public interest or for the protection of purchasers.

§ 32-2198.04 Examination of project by commissioner

The commissioner, pursuant to an investigation conducted under section 32-2108 or an application for public report pursuant to section 32-2198.01, may examine any membership campground project offered or sold in this state and make his findings public. The total cost of travel and subsistence expenses incurred by the department in the examination shall be borne by the owner of the project on the basis of the actual cost to the department.

§ 32-2198.05 Contracts; cancellation

A membership camping contract may be cancelled by a resident purchaser for any reason at any time before midnight of the third business day after the purchaser has signed and received a copy of the contract. A membership camping contract may be cancelled by a nonresident purchaser for any reason at any time before midnight of the seventh calendar day after the purchaser has signed and received a copy of the contract. To cancel a contract the purchaser may notify the campground operator of the cancellation in writing, by certified mail return receipt requested, or personal delivery, to an address in this state as specified in the contract. Proof of timely cancellation is satisfied if the certified letter is postmarked on or before midnight of the seventh day. All monies paid pursuant to the cancelled contract shall be fully refunded within thirty days of receipt of the notice of cancellation. If the purchaser executed any credit or loan agreement through the campground operator to pay all or part of the camping services, the debt and security instruments shall also be returned within thirty days. The contract shall contain a conspicuous notice printed in at least ten point bold-faced type as follows:

Notice to purchaser

You are entitled to a copy of this contract at the time you sign it.

You may cancel this contract at any time, if a resident of this state, before midnight of the third business day or if a nonresident of this state before midnight of the seventh calendar day after receiving a signed copy of this contract. If you choose to cancel this contract, you must either:

1. Send a signed and dated written notice of cancellation by certified mail, return receipt requested.

2. Personally deliver a signed and dated written notice of cancellation to:

____________________(Name of Campground)

____________________(Address of Campground)

If you cancel this contract within the time periods set forth above, you are entitled to a full refund of your money. If the last day for giving notice falls on a Sunday or holiday, notice is timely given if it is mailed or delivered as specified on the next business day. Refunds must be made within thirty days of receipt of the cancellation notice by the campground operator.

§ 32-2198.06 Execution of notes; assignment; purchaser's defenses retained

A. A membership camping contract shall not require the execution of any note or series of notes by the purchaser which if separately negotiated would terminate as to third parties any right of action or defense which the customer has against the campground operator.

B. A right of action or defense arising out of a membership camping contract which the customer has against the campground operator shall not be terminated by assignment of the contract whether or not the assignee acquires the contract in good faith and for value.

§ 32-2198.08 Denial, suspension or revocation of a public report

A. The commissioner may order that a public report be denied, suspended or revoked or an application for a public report be denied if he finds that the order is necessary for the protection of purchasers or owners of membership camping contracts and that any of the following is true:

1. The membership camping operator's advertising, sales techniques or trade practices have been or are deceptive, false or misleading under section 44-1522.

2. The membership camping operator has failed to comply with any provision of this article or the rules pertaining to this article.

3. The membership camping operator is not financially responsible or has insufficient capital to warrant its offering or selling membership camping contracts or to complete proposed amenities.

4. The membership camping operator's offering of membership camping contracts has worked or would work a fraud on purchasers or owners of membership camping contracts.

5. The membership camping operator's application or any amendment to the application is incomplete in any material respect.

6. The membership camping operator has represented or is representing to purchasers in connection with the offer or sale of a membership camping contract that any property, facility, campsite or other development is planned without reasonable grounds to believe that the property, facility, campsite or other development will be completed within a reasonable time.

7. The membership camping operator has withdrawn from use all or any substantial portion of any campground, the rights of all purchasers at the affected location have not expired and no adequate provision has been made to provide a substitute campground of comparable quality and attraction in the same general area within a reasonable time after the withdrawal.

8. The membership camping operator or its agent made a representation which is false or misleading in any application, document or statement filed with the commissioner.

9. The membership camping operator has disseminated or caused to be disseminated any false or misleading promotional materials in connection with a campground.

10. The membership camping operator or any of his agents has failed to comply with any representation in the final public report or membership camping contract.

11. The owner, operator, agent, officer, director or partner, trust beneficiary holding ten per cent or more beneficial interest or, if a corporation, any stockholder owning ten per cent or more of the stock in such corporation has:

(a) Been convicted of a felony or misdemeanor involving fraud, dishonesty, moral turpitude or any like offense, or involving a transaction in real estate, cemetery property, time-share intervals or membership camping campgrounds or contracts.

(b) Been permanently or temporarily enjoined by order, judgment or decree from engaging in or continuing any conduct or practice in connection with the sale or purchase of real estate or cemetery property, time-share intervals, membership camping contracts or campgrounds, or securities or involving consumer fraud or the racketeering laws of this state.

(c) Had an administrative order entered against him by a real estate regulatory agency or security regulatory agency.

(d) Had an adverse decision or judgment entered against him involving fraud or dishonesty or involving the conduct of any business in or a transaction in real estate, cemetery property, time-share intervals or membership camping campgrounds or contracts.

(e) Disregarded or violated any of the provisions of this chapter or the rules of the commissioner pertaining to this chapter.

(f) Participated in, operated or held an interest in any entity to which subdivision (b), (c), (d) or (e) applies.

B. Within thirty days after receipt of the order of denial, an applicant objecting to the denial of a public report may file a written request for a hearing. The commissioner shall hold the hearing within twenty days thereafter unless the party requesting the hearing has requested a postponement. If the hearing is not held within twenty days after a request for a hearing is received, plus the period of any postponement, or if a proposed decision is not rendered within forty-five days after submisssion, the order of denial shall be rescinded and a public report issued.

C. The commissioner, on his own motion or if he has received a complaint and has satisfactory evidence that grounds exist as provided in subsection A of this section or that any person has deviated from the provisions of the public report, may conduct an investigation of such matter, may issue a summary order as provided in section 32-2157 or may hold a public hearing and, after the hearing, may issue such order or orders as he deems necessary to protect the public interest and ensure compliance with the law, the rules or the public report, or the commissioner may bring an action in any court of competent jurisdiction against the person to enjoin the person from continuing the violation, engaging the violation or doing any act in furtherance of the violation. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by a person of any unlawful practices, or which may be necessary to restore to any person in interest any monies or property, real or personal, which may have been acquired by means of any practice in this article declared to be unlawful.

D. If the commissioner has reasonable cause to believe that a person has engaged or is engaging in a practice declared to be unlawful by this article and that the person is concealing assets or self or has made arrangements to conceal assets or is about to leave this state and that the public health, safety or welfare so requires, the commissioner may apply to the superior court, ex parte, for an order appointing a receiver of the assets of the person or for a writ of ne exeat, or both.

E. The court, on receipt of an application for the appointment of a receiver or for a writ of ne exeat, or both, shall examine the verified application of the commissioner and any other evidence that the commissioner may present the court. If satisfied that the interests of the public require the appointment of a receiver or the issuance of a writ of ne exeat without notice, the court shall issue an order appointing the receiver or issue the writ, or both. Unless the court determines that the interests of the public will be harmed by the giving of notice, the court shall set a time for a hearing and require that such notice be given as the court deems satisfactory.

F. If the court appoints a receiver without notice, the court shall further direct that a copy of the order appointing a receiver be served on the person alleged to have engaged or to be engaging in a practice declared to be unlawful under this article by delivering the order to the last address of the person which is on file with the department. The order shall inform the person that he has the right to request a hearing within ten days of the date of the order and, if requested, that the hearing shall be held within twenty days from the date of the order.

G. If the commissioner determines that the managing camp operator is not financially responsible or has insufficient capital, the commissioner may require a surety bond or if one is unobtainable, other evidence of financial assurances in accordance with generally accepted accounting principles and generally accepted commercial standards of financial responsibility satisfactory to the commissioner to assure the financial responsibility and sufficient capitalization of the membership camping operator or to assure the completion of proposed amenities.

§ 32-2198.09 Fees

A. Each application for a membership camping public report shall be accompanied by a fee of five hundred dollars.

B. Each application for amendment or renewal of a public report shall be accompanied by a fee of three hundred dollars.

C. Each application for a special order of exemption shall be accompanied by a fee of one hundred dollars.

§ 32-2198.10 Advertising plans; disclosures; lotteries and drawings

A. Any advertising, communication or sales literature, including oral statements by salespersons or any other person, shall not contain:

1. Any untrue statement of material fact or any omission of material fact which would make the statements misleading in light of the circumstances under which such statements were made.

2. Any statement or representation that the membership camping contracts are offered without risk or that loss is impossible.

3. Any statement or representation or pictorial presentation of proposed improvements or nonexistent scenes without clearly indicating that the improvements are proposed and the scenes do not exist.

B. It is unlawful for any owner, developer, agent or employee of any membership camping project or other person with intent directly or indirectly to sell membership camping contracts to authorize, use, direct or aid in any advertising, communication, sales literature or promotional practice which violates this section.

C. This section does not apply to the owner or publisher of a newspaper or magazine or to any other publication of printed matter in which an advertisement appears or to the owner or operator of a radio or television station which disseminates an advertisement if the owner, publisher or operator has no knowledge of the intent, design or purpose of the advertiser.

D. The commissioner may adopt rules permitting lotteries and drawings for the purpose of inducing prospective buyers to attend a sales presentation or to take a campground tour and establishing requirements and conditions for lotteries and drawings. These requirements and conditions shall include that:

1. No membership camping operator may hold a lottery or drawing who does not also have pursuant to section 32-2198.14 a recorded nondisturbance agreement, a bond or irrevocable letter of credit or some other financial assurance acceptable to the commissioner. The commissioner may require the campground operator to provide an independent auditor's report by a certified public accountant or other expert concerning the campground operator's financial condition.

2. No lottery or drawing may be held unless approved in advance by the commissioner.

3. The membership camping operator shall submit an application for approval of a lottery or drawing on a form approved by the commissioner and a fee of at least one hundred dollars and not more than two hundred fifty dollars.

4. The department shall require the applicant to pay all costs of field inspections to audit or oversee the operation of any drawing or lottery, including mileage, lodging and time spent in the field inspections and any experts employed to assist the department.

5. The deed, title, cash amount or other prize or guarantee of the prize shall be held by the department or in a neutral escrow by a disinterested third party approved by the department, pending the award of the prize to the lottery or drawing winner.

6. Any lottery or drawing shall be limited in time, scope and geographic location. The estimated odds of winning and terms of the lottery or drawing shall be disclosed in writing to participants.

7. No fee may be charged to any person who participates in a lottery or drawing.

8. The commissioner may deny or revoke any authorization to conduct a lottery or drawing to any person if the campground operator or broker or a salesperson violates any statute or rule adopted or order issued by the commissioner.

9. Violations of any requirements or conditions set forth in this section or by rule shall be grounds for the commissioner to deny future applications to hold lotteries or drawings.

10. The membership camping broker is responsible at all times for the lawful and proper conduct of any lottery or drawing.

E. No campground facility may be advertised or promoted in any way that appears to guarantee the unimpeded use of or access to campground properties, if a blanket encumbrance exists on the properties, unless a nondisturbance or other acceptable agreement has been recorded, filed and accepted by the department pursuant to section 32-2198.14.

§ 32-2198.11 Purchaser's remedies

A. A membership camping contract entered into in substantial reliance on any false, fraudulent or misleading information, representation, notice or advertisement of the campground operator or its agents is voidable at the option of the purchaser. Reasonable attorney fees shall be awarded to the prevailing party in any action under this chapter.

B. Any waiver of the provisions of this article by the purchaser is void.

C. A purchaser who is injured by a violation of this article may bring an action for the recovery of damages, reasonable attorney fees and, if the violation is wilful, punitive damages in the amount of five thousand dollars per violation.

§ 32-2198.13 Construction of this article

The provisions of this article are in addition to all other causes of action, remedies and penalties available to this state or to the purchaser.

§ 32-2198.14 Advertising availability of campgrounds to campground members; blanket encumbrances

A. No membership campground may be advertised or promoted in any way that guarantees the unimpeded use of or access to the campground's properties unless the membership camping operator applies for and receives approval by filing information satisfactory to the department guaranteeing that the purchasers of membership camping contracts cannot be denied access to and use of campground properties pursuant to the membership camping contracts. The department may require the applicant to pay for any costs of experts hired by the department to evaluate the application, nondisturbance clause or financial condition of the applicant. No lien or encumbrance may be construed to deny access and use.

B. The applicant shall include satisfactory evidence that purchasers of campground memberships acquire an unimpeded and irrevocable right of access to and use of campground properties by means acceptable to the department, including:

1. A duly recorded nondisturbance agreement from each holder of a lien or encumbrance on a membership campground that provides minimally for:

(a) Enforcement of the agreement by individual campground members.

(b) Effectiveness of the agreement notwithstanding insolvency, bankruptcy of the membership campground operator or sale of the campground.

(c) Binding successors in interest of both the campground membership operator and each holder of a lien or encumbrance.

(d) Alternative means to continue operation of the campground if the campground operator, holder of a lien or encumbrance or purchaser who obtains title or possession of the campground ceases to act as operator.

2. A bond or irrevocable letter of credit posted by the membership camping operator in an aggregate principal amount sufficient to cover the indebtedness remaining under any lien or encumbrance.

3. Other financial assurances reasonably acceptable to the department.

Article 11 Administrative Hearings

§ 32-2199 Administrative adjudication of complaints

Pursuant to title 41, chapter 6, article 10, an administrative law judge shall adjudicate complaints regarding and ensure compliance with:

1. Title 33, chapter 9 and condominium documents.

2. Title 33, chapter 16 and planned community documents.

§ 32-2199.01 Hearing; rights and procedures

A. For a dispute between an owner and a condominium association or planned community association that is regulated pursuant to title 33, chapter 9 or 16, the owner or association may petition the department for a hearing concerning violations of condominium documents or planned community documents or violations of the statutes that regulate condominiums or planned communities. The petitioner shall file a petition with the department and pay a filing fee in an amount to be established by the commissioner. The filing fee shall be deposited in the condominium and planned community hearing office fund established by section 32-2199.05. On dismissal of a petition at the request of the petitioner before a hearing is scheduled or by stipulation of the parties before a hearing is scheduled, the filing fee shall be refunded to the petitioner. The department does not have jurisdiction to hear:

1. Any dispute among or between owners to which the association is not a party.

2. Any dispute between an owner and any person, firm, partnership, corporation, association or other organization that is engaged in the business of designing, constructing or selling a condominium as defined in section 33-1202 or any property or improvements within a planned community as defined in section 33-1802, including any person, firm, partnership, corporation, association or other organization licensed pursuant to this chapter, arising out of or related to the design, construction, condition or sale of the condominium or any property or improvements within a planned community.

B. The petition shall be in writing on a form approved by the department, shall list the complaints and shall be signed by or on behalf of the persons filing and include their addresses, stating that a hearing is desired, and shall be filed with the department.

C. On receipt of the petition and the filing fee the department shall mail by certified mail a copy of the petition along with notice to the named respondent that a response is required within twenty days after mailing of the petition showing cause, if any, why the petition should be dismissed.

D. After receiving the response, the commissioner or the commissioner's designee shall promptly review the petition for hearing and, if justified, refer the petition to the office of administrative hearings. The commissioner may dismiss a petition for hearing if it appears to the commissioner's satisfaction that the disputed issue or issues have been resolved by the parties.

E. Failure of the respondent to answer is deemed an admission of the allegations made in the petition, and the commissioner shall issue a default decision.

F. Informal disposition may be made of any contested case.

G. Either party or the party's authorized agent may inspect any file of the department that pertains to the hearing, if the authorization is filed in writing with the department.

H. At a hearing conducted pursuant to this section, a corporation may be represented by a corporate officer, employee or contractor of the corporation who is not a member of the state bar if:

1. The corporation has specifically authorized the officer, employee or contractor of the corporation to represent it.

2. The representation is not the officer's, employee's or contractor of the corporation's primary duty to the corporation but is secondary or incidental to the officer's, employee's or contractor of the corporation's, limited liability company's, limited liability partnership's, sole proprietor's or other lawfully formed and operating entity's duties relating to the management or operation of the corporation.

§ 32-2199.02 Orders; penalties; disposition

A. The administrative law judge may order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation. All monies collected pursuant to this article shall be deposited in the condominium and planned community hearing office fund established by section 32-2199.05 to be used to offset the cost of administering the administrative law judge function. If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

B. The order issued by the administrative law judge is binding on the parties unless a rehearing is granted pursuant to section 32-2199.04 based on a petition setting forth the reasons for the request for rehearing, in which case the order issued at the conclusion of the rehearing is binding on the parties. The order issued by the administrative law judge is enforceable through contempt of court proceedings and is subject to judicial review as prescribed by section 41-1092.08.

§ 32-2199.04 Rehearing; appeal

A. A person aggrieved by a decision of the administrative law judge may apply for a rehearing by filing with the commissioner a petition in writing pursuant to section 41-1092.09. Within ten days after filing such petition, the commissioner shall serve notice of the request on the other party by mailing a copy of the petition in the manner prescribed in section 32-2199.01 for notice of hearing.

B. The filing of a petition for rehearing temporarily suspends the operation of the administrative law judge's action. If the petition is granted, the administrative law judge's action is suspended pending the decision on the rehearing.

C. In the order granting or denying a rehearing, the commissioner shall include a statement of the particular grounds and reasons for the commissioner's action on the petition and shall promptly mail a copy of the order to the parties who have appeared in support of or in opposition to the petition for rehearing.

D. In a rehearing conducted pursuant to this section, a corporation may be represented by a corporate officer or employee who is not a member of the state bar if:

1. The corporation has specifically authorized such officer or employee to represent it.

2. Such representation is not the officer's or employee's primary duty to the corporation but is secondary or incidental to such officer's or employee's duties relating to the management or operation of the corporation.

§ 32-2199.05 Condominium and planned community hearing office fund

A. The condominium and planned community hearing office fund is established in the department to be administered by the commissioner. Monies in the fund are continuously appropriated. On notice from the commissioner, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

B. Monies in the condominium and planned community hearing office fund shall be used to reimburse the actual costs of the office of administrative hearings in conducting hearings pursuant to section 32-2199.01. Monies remaining in the fund may be used by the department to offset the costs of administering cases filed pursuant to section 32-2199.01.

Chapter 21 Veterinarians

Article 1 Administration

§ 32-2201 Definitions

In this chapter, unless the context otherwise requires:

1. "Animal" means any animal other than human.

2. "Board" means the Arizona state veterinary medical examining board.

3. "Certified veterinary technician" means either:

(a) A graduate of a minimum two-year American veterinary medical association accredited program in veterinary technology who has passed a national and a state veterinary technician examination.

(b) A person who is certified on or before December 31, 2010 pursuant to the rules adopted by the board.

4. "Consulting" means providing professional or expert advice that is requested by a veterinarian licensed in this state and that is rendered only on a specific case basis.

5. "Controlled substance" means any substance that is registered and controlled under the controlled substances act (P.L. 91-513).

6. "Cremation" means the heating process that reduces animal remains to bone fragments by combustion and evaporation.

7. "Crematory" means a building or portion of a building that is licensed pursuant to article 8 of this chapter and that houses a retort in which only animal remains are cremated.

8. "Direct supervision" means that a licensed veterinarian is physically present at the location where animal health care is being performed.

9. "Gross incompetence" means any professional misconduct or unreasonable lack of professional skill in the performance of professional practice.

10. "Gross negligence" means treatment of a patient or practice of veterinary medicine resulting in injury, unnecessary suffering or death that was caused by carelessness, negligence or the disregard of established principles or practices.

11. "Indirect supervision" means that a licensed veterinarian is not physically present at the location where animal health care is being performed but has given either written or oral instructions for treatment of the animal patient.

12. "Letter of concern" means an advisory letter to notify a veterinarian that, while there is insufficient evidence to support disciplinary action, the board believes the veterinarian should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in action against the veterinarian's license.

13. "Licensed veterinarian" means a person who is currently licensed to practice veterinary medicine in this state.

14. "Licensed veterinary faculty member" means a person who is currently licensed to practice veterinary medicine as an employee of a veterinary college in this state.

15. "Malpractice" means treatment in a manner contrary to accepted practices and with injurious results.

16. "Medical incompetence" means lacking sufficient medical knowledge or skills, or both, to a degree likely to endanger the health of patients or lacking equipment, supplies or medication to properly perform a procedure.

17. "Negligence" means the failure of a licensed veterinarian to exercise reasonable care in the practice of veterinary medicine.

18. "Regularly" means that veterinary services are offered to the public once a month or more frequently.

19. "Responsible veterinarian" means the veterinarian who is responsible to the board for compliance by licensed veterinary premises with the laws and rules of this state and of the federal government pertaining to the practice of veterinary medicine and responsible for establishing the policy at such premises.

20. "Specialist" means a veterinarian who is certified as a diplomate in a particular discipline by a national specialty board or college recognized by the American veterinary medical association after completing additional education and training, an internship or residency, passing required examinations and meeting any other criteria required by the various individual national specialty boards or colleges.

21. "Supervising veterinarian" means a licensed veterinarian who is responsible for the care rendered to an animal by a certified veterinary technician or a veterinary assistant.

22. "Temporary sites" means sites where outpatient veterinary services are performed.

23. "Twenty-four hour services" means veterinary services when a veterinarian is on the premises twenty-four hours a day.

24. "Veterinarian" means a person who has received a doctor's degree in veterinary medicine from a veterinary college.

25. "Veterinarian client patient relationship" means a relationship between a veterinarian and a client or the owner or caretaker of an animal in which the veterinarian meets all of the following:

(a) Assumes the responsibility for making medical judgments regarding the animal's health and need for medical treatment and the client, owner or caretaker has agreed to follow the veterinarian's instructions.

(b) Has sufficient knowledge of the animal to initiate at least a general or preliminary diagnosis of the animal's medical condition. For the purposes of this subdivision, sufficient knowledge is obtained when any of the following occurs:

(i) The veterinarian has recently seen and is personally acquainted with the keeping and caring of the animal as a result of examining the animal.

(ii) The veterinarian makes medically appropriate and timely visits to the premises where the animal is kept.

(iii) A veterinarian affiliated with the practice has reviewed the medical record of such examinations or visits.

(iv) The veterinarian obtains current knowledge of the animal by conducting a real-time electronic examination using an audio-video based communication medium.

(c) Is readily available for a follow-up evaluation or has arranged for either of the following:

(i) Emergency coverage.

(ii) Continuing care and treatment by another veterinarian who has access to the animal's medical records.

26. "Veterinary assistant" means an individual who provides care under the direct supervision or indirect supervision of a veterinarian or certified veterinary technician.

27. "Veterinary college" means any veterinary college or division of a university or college that offers the degree of doctor of veterinary medicine or its equivalent and that conforms to the standards required for accreditation by the American veterinary medical association.

28. "Veterinary faculty member" means a person who has received a doctor's degree in veterinary medicine from a veterinary college and who is an employee of a veterinary college in this state.

29. "Veterinary medicine" includes veterinary surgery, obstetrics, dentistry, acupuncture, manipulation and all other branches or specialties of veterinary medicine and prescribing, administering or dispensing drugs and medications for veterinary purposes.

30. "Veterinary student" means a student who is regularly enrolled in a veterinary college.

§ 32-2202 Board; appointment; term; qualifications; officers; compensation

A. There shall be an Arizona state veterinary medical examining board consisting of nine members appointed by the governor pursuant to section 38-211.

B. Each member shall serve for a term of four years. A member shall not serve more than two full terms. After notice and a hearing before the governor, a member of the board may be removed on a finding by the governor of continued neglect of duty, incompetence or unprofessional or dishonorable conduct. The term of any member automatically ends on written resignation submitted to the board or to the governor.

C. Five members shall be licensed veterinarians who have an established practice location in this state or are employed by a university or a political subdivision of the state and who have resided and practiced in the state for at least five years immediately preceding appointment, no more than three of whom shall be from the same veterinary college. Three members shall not be veterinarians, two representing the general public and one representing the livestock industry. One member shall be a certified veterinary technician who has held the designation for at least five years, is currently employed in the veterinary field in this state and has practiced and resided in this state for at least five years immediately preceding appointment. Except as provided in subsection F of this section, a person who has been convicted of a violation of any provision of this chapter is ineligible for appointment.

D. The board shall elect a chairman and such other officers as it deems necessary. The term of each officer shall be one year ending June 30, or until the officer's successor is elected and qualifies.

E. Each member of the board shall receive compensation at a rate not exceeding one hundred dollars for each day engaged in the service of the board.

F. The governor may appoint a person to the board who has previously been sanctioned pursuant to section 32-2233, subsection B.

§ 32-2203 Reports

The chairman of the board shall make an annual report to the governor on or before October 1 of each year. The report shall include a summary of licenses or certificates denied, suspended or revoked and licensees censured and placed on probation and a financial statement for the preceding fiscal year. Any member of the board may submit a separate report to the governor on or before October 1 of each year that includes the member's comments on the board's licensing and disciplinary activities for the preceding fiscal year.

§ 32-2204 Meetings; quorum

A. The board shall hold one annual meeting and other meetings as necessary. Special meetings may be called by the chairman of the board. The time and place of the annual meeting and the method of giving notice of special meetings shall be fixed by the rules adopted by the board.

B. At each board meeting the board shall make a call to the public informing attendees that any member of the public may address the board regarding any matter that appears on the board's agenda.

C. The board shall tape record all discussions of complaints that are not conducted in executive session. The board shall retain the tapes for at least two years.

D. A majority of the board members shall constitute a quorum.

§ 32-2205 Veterinary medical examining board fund

(L24, Ch. 222, sec. 33. Eff. until 7/1/28)

A. The veterinary medical examining board fund is established. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all fees and other revenue accruing to the board in the state general fund and deposit the remaining eighty-five percent in the veterinary medical examining board fund.

B. All monies deposited in the veterinary medical examining board fund are subject to section 35-143.01.

§ 32-2205 (Version 2) Veterinary medical examining board fund

(L24, Ch. 222, sec. 34. Eff. 7/1/28)

A. The veterinary medical examining board fund is established. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all fees and other revenue accruing to the board in the state general fund and deposit the remaining ninety percent in the veterinary medical examining board fund.

B. All monies deposited in the veterinary medical examining board fund are subject to section 35-143.01.

§ 32-2206 Board personnel

Subject to title 41, chapter 4, article 4, the board may employ personnel as it deems necessary to provide investigative, professional and clerical assistance as required to perform its duties under this article. Personnel are eligible to receive compensation in an amount as determined pursuant to section 38-611. The board may contract with other state or federal agencies as required to carry out this article.

§ 32-2207 Veterinary board; powers and duties

The primary duty of the board is to protect the public from unlawful, incompetent, unqualified, impaired or unprofessional practitioners of veterinary medicine through licensure and regulation of the profession in this state. The powers and duties of the board include:

1. Administering and enforcing this chapter and board rules.

2. Regulating disciplinary actions, the granting, denial, revocation, renewal and suspension of licenses and certificates and the rehabilitation of licensees and certificate holders pursuant to this chapter and board rules.

3. Prescribing the forms, content and manner of application for licensure and certification and renewal of licensure and certification and setting deadlines for the receipt of materials required by the board.

4. Keeping a record of all licensees and certificate holders, board actions taken concerning all applicants, licensees and certificate holders and the receipt and disbursal of monies.

5. Adopting an official seal for attestation of licenses, certificates and other official papers and documents.

6. Investigating charges of violations of this chapter and board rules and orders.

7. Subject to title 41, chapter 4, article 4, employing an executive director who serves at the pleasure of the board.

8. Adopting rules pursuant to title 41, chapter 6 that relate to the qualifications and regulation of doctors of veterinary medicine, certified veterinary technicians, veterinary premises, mobile veterinary clinics and crematories and other rules that the board deems necessary for the administration of this chapter. The rules may include continuing education requirements for licensees and certificate holders and shall include:

(a) Minimum standards of veterinary practice.

(b) Provisions to ensure that the public has reasonable access to nonconfidential information about the licensing or certification status of persons regulated under this chapter and about resolved complaints against licensees and certificate holders.

(c) Provisions to ensure that members of the public have an opportunity to evaluate the services that the board provides to the public.

(d) A provision that licensed veterinary faculty members are not subject to continuing education requirements.

9. Establishing by rule fees and penalties as provided in this chapter, including fees for the following:

(a) Reproduction of documents.

(b) Verification of information about a licensed veterinarian at the request of a veterinary licensing board in another jurisdiction.

(c) Return of checks due to insufficient funds, an order to stop payment or a closed account.

(d) Provision of a list of the names of veterinarians, certified veterinary technicians or veterinary premises licensed or certified by the board.

10. Adopting rules that require the board to inform members of the public about the existence of the office of the ombudsdman-citizens aide established by section 41-1375.

§ 32-2208 Immunity from personal liability

Members, agents and employees of the board and members of board committees are immune from personal liability with respect to acts done and actions taken in good faith within the scope of their authority.

§ 32-2209 Substance abuse treatment and rehabilitation plan; private contract; funding

A. The board may establish a plan for the treatment and rehabilitation of licensees or certificate holders who are impaired by alcohol or drug abuse. The plan shall include education, intervention, therapeutic treatment and posttreatment monitoring and support.

B. The board may contract with other organizations to implement the plan established pursuant to subsection A of this section. A contract with a private organization shall require that the private organization do all of the following:

1. Make periodic reports to the board regarding treatment program activity.

2. Pursuant to a written request by the board or its executive director with direction from the chairman, release all treatment records.

3. Make quarterly reports to the board by case number regarding each participant's diagnosis and prognosis and recommendations for each participant's continuing care, treatment and supervision.

4. Immediately report to the board the name of an impaired licensee or certificate holder whom the organization believes to be a danger to the licensee or certificate holder or to others.

5. Immediately report to the board the name of a participant who refuses to submit to treatment or whose impairment is not substantially alleviated through treatment.

C. The board may allocate up to five per cent from each fee collected from renewal of licenses pursuant to section 32-2219 for implementation of the plan established by this section.

D. A licensee or certificate holder who is impaired by alcohol or drug abuse may enter into a stipulation order with the board, or the licensee or certificate holder may be placed on probation or be subject to other action as provided by law. A licensee or certificate holder who is impaired by alcohol or drug abuse and who self-refers before any board investigation or disciplinary action may enter into a nondisciplinary and confidential contract with the plan administrator for participation in the plan.

E. Participants in the plan are either confidential or known. Confidential participants are self-referred and may remain unidentified to the board, subject to maintaining compliance with their nondisciplinary and confidential contract with the plan administrator. Known participants are under a board order of discipline to complete a minimum tenure in the plan. After a known participant completes the minimum tenure, the board may terminate the board order and reinstate the participant's license to practice veterinary medicine or certification as a veterinary technician.

Article 2 Licensing

§ 32-2211 Exceptions from application of chapter

This chapter does not apply to:

1. A commissioned veterinary medical officer of the United States armed services or employees of the animal disease eradication division of the United States department of agriculture.

2. A person who treats an animal belonging to the person or the person's employer while in the regular service of that employer or the animal of another without compensation. Animals consigned by their legal owner for feeding or care to consignment livestock operations shall be considered to be the property of the consignee.

3. A licensed veterinarian of another state or foreign country who consults with a licensed veterinarian in this state.

4. A veterinary student who performs acts of health care or prescribed veterinary procedures as a part of the veterinary student's educational experience if both of the following apply:

(a) The acts are assigned by a licensed veterinarian or a licensed veterinary faculty member who is responsible for the animal's care.

(b) The veterinary student works under the direct supervision of a licensed veterinarian or a licensed veterinary faculty member.

5. A veterinary assistant who is employed by a licensed veterinarian and who performs duties other than diagnosis, prognosis, prescription or surgery under the direct supervision or indirect supervision of the licensed veterinarian who is responsible for the veterinary assistant's performance.

6. An emergency medical care technician who provides emergency treatment pursuant to section 36-2230.

7. A physician who is licensed pursuant to chapter 13 or 17 of this title and who provides administrative medical direction as defined in section 36-2201 or online medical direction within the emergency medical services and trauma system to an emergency medical care technician who is providing emergency treatment pursuant to section 36-2230.

8. A rabies vaccinator who is certified in the administration of rabies vaccines pursuant to section 32-2240.02.

§ 32-2212 Issuance of license; previous licenses qualified; use of designations

A. If an applicant for a veterinary license satisfactorily passes the examination given by the board, demonstrates a scientific and practical knowledge of the art and science of veterinary medicine and complies with this chapter, the board shall issue a license to the applicant to practice veterinary medicine in this state.

B. If an applicant for a veterinary faculty member license complies with this chapter and is approved by the board, the board shall issue a veterinary faculty member license to the applicant to practice veterinary medicine as a faculty member of the veterinary college where the applicant is employed. A licensed veterinary faculty member may practice veterinary medicine only under the licensee's official academic responsibilities.

C. The board shall deny licensure to an applicant who has satisfied all licensing requirements but who has not submitted the license issuance fee within twelve months after the date of the examination or, for a veterinary faculty member license applicant, within twelve months after the date of application. An applicant who fails to submit the fee within that time forfeits qualification for licensure, and the applicant shall reapply for licensure pursuant to sections 32-2213 and 32-2214.

D. All persons presently licensed to practice veterinary medicine in the state of Arizona who have complied with the provisions of law existing prior to June 12, 1967 shall be considered as licensed veterinarians under this chapter, and the names of such licensees shall be entered on the official register kept by the board.

E. No person shall append any letters to such person's name indicating a degree in veterinary medicine, such as D.V.M. or V.M.D., or use the word doctor, veterinary, veterinarian, professor, animal doctor or animal surgeon, or any abbreviation or combination thereof of similar import in connection with such person's name, or any trade name in the conduct of any occupation or profession pertaining to the diagnosis or treatment of animal diseases or conditions mentioned in this chapter, unless such person is licensed to practice veterinary medicine under this chapter.

§ 32-2213 Application for license; retention of examination materials

A. A person desiring to practice veterinary medicine or surgery, including as a faculty member at a veterinary college, shall apply in writing to the board for a license to practice. The application shall be on a form provided by the board and shall require the following information:

1. The name, age and address of the applicant.

2. The names of schools of veterinary medicine that the applicant attended, the dates of attendance and the date of transfer.

3. The degrees held from schools of veterinary medicine.

4. The location and length of time in active practice in other states or territories of the United States, if any, and whether or not the applicant is in good standing in each location of practice.

5. An affidavit that the facts recited in the application are accurate, true, and complete.

6. An affidavit that no complaint has been filed and is pending, no investigation is pending and no disciplinary action has been taken or is pending on any veterinary license the applicant holds from another state.

7. For a veterinary faculty member license application, documentation from an authorized official of a veterinary college in this state that shows that the applicant has been appointed to the faculty of that veterinary college.

8. Any other information that is required by rules adopted by the board.

B. All examination papers, tapes, questions and answers shall be maintained in accordance with a retention schedule approved by the Arizona state library, archives and public records.

§ 32-2214 Examination of applicants; confidentiality

A. All applicants for a veterinary license, not including a veterinary faculty member license, shall take an examination that consists of the following:

1. A state examination approved by the board.

2. The North American veterinary licensing examination.

B. The state examination shall be both:

1. Held in January and June of each year unless otherwise provided by the board.

2. Conducted so that the members of the board do not know the name of the applicant until the judging or grading is officially completed.

C. A grade of at least seventy-five percent is required to successfully pass the North American veterinary licensing examination. A grade of at least seventy-five percent is required to successfully pass the state examination. The scores of the North American veterinary licensing examination and the state examination shall not be averaged. National board scores that are received from either the national examination committee or the North American veterinary licensing examination committee from another state may be accepted for part of an applicant's passing score.

D. An applicant's score that was received within the preceding five years and that is on record at the national examination service or the North American veterinary licensing examination committee shall be verified through either the national examination service or the North American veterinary licensing examination committee, unless the applicant is applying for a license by endorsement or a specialty license under section 32-2215, subsection C or D, in which case the applicant's score shall be transcribed and received by the board.

E. All examination materials, records of examination grading and performance and transcripts of educational institutions concerning applicants or licensees are confidential and not public records.

§ 32-2215 Qualifications for license to practice veterinary medicine

A. An applicant for a license issued under this chapter shall:

1. Be a graduate of a veterinary college that is accredited by the American veterinary medical association or hold a certificate issued by the educational commission for foreign veterinary graduates, the program for the assessment of veterinary education equivalence or a foreign graduate testing program approved by the board. This paragraph does not apply to an applicant for a veterinary faculty member license who has graduated from a veterinary college.

2. Satisfactorily pass both a state examination approved by the board as provided in this chapter and the North American veterinary licensing examination. This paragraph does not apply to an applicant for a veterinary faculty member license.

B. An applicant may be denied licensure either before or after an examination if the applicant has committed any act that if committed by a licensee would be grounds for suspension or revocation of a license to practice veterinary medicine under this chapter.

C. The board may waive the examination requirement pursuant to section 32-2214, subsection A, paragraph 2 and, except as provided in subsection E of this section, may issue a license by endorsement to an applicant to practice veterinary medicine if the applicant provides all required documentation pursuant to section 32-2213 and meets the following requirements:

1. Holds an active license in one or more other states or in Canada and submits verification that the applicant has previously taken and passed the examination required by section 32-2214, with a score at least equal to the score required to pass in this state. An applicant who received original licensure before the examination required by section 32-2214 was required in the state in which the applicant was originally licensed may be eligible for licensure without having taken that examination as required pursuant to this chapter if all other requirements are met.

2. Lawfully and actively engages in the practice of veterinary medicine for at least three of the preceding five years or six of the preceding ten years in one or more states in this country or in Canada before filing an application for licensure in this state.

3. Has graduated from a veterinary college recognized by the board.

4. Successfully passes a state examination approved by the board with a grade of at least seventy-five percent.

5. Pays a fee for the license of $750.

D. The board may waive the examination requirement pursuant to section 32-2214, subsection A, paragraph 2 and, except as provided in subsection E of this section, may issue a specialty license to an applicant to practice veterinary medicine if the applicant provides all required documentation pursuant to section 32-2213 and meets the following requirements:

1. Holds a current certification as a specialist of a national specialty board or college recognized by the American veterinary medical association.

2. Limits the applicant's practice to the scope of the applicant's board certification.

3. Successfully passes a state examination approved by the board with a score of at least seventy-five percent.

4. Pays a fee for the specialty license of $750.

E. The board shall determine whether previous disciplinary action prevents licensure by endorsement or specialty licensure of an applicant to practice veterinary medicine, and the board may discipline the licensee at the time of licensure as a result of the previous disciplinary action.

F. Any veterinary faculty member who is employed by a veterinary college that is accredited by the American veterinary medical association, if applicable, is subject to the requirements under the veterinary faculty member license.

§ 32-2216 Issuance of temporary permits; emergency temporary permits; definition

A. The board may issue temporary permits to veterinary license applicants and to veterinarians who are licensed in other states and who enter this state to provide voluntary services during a state of emergency as declared by the governor or the board of supervisors of the county in which the board of supervisors has declared a local emergency pursuant to section 26-311. Except for applicants who are veterinary faculty members who have graduated from a veterinary college, applicants for all temporary permits must be graduates of an American veterinary medical association accredited veterinary college or holders of a certificate from the educational commission for foreign veterinary graduates or from a program for the assessment of veterinary education at the time of application.

B. The temporary permit issued under this section entitles a veterinary license applicant to engage in the active practice of veterinary medicine in this state as an employee of a licensed veterinarian, this state or any county or municipality in this state. The applicant is eligible for the next examination, if the applicant has not violated any provision of this chapter. An applicant working under the direct and personal instruction, control or supervision of a licensed veterinarian and whose compensation is paid by the veterinarian may perform those acts of animal health care assigned by the veterinarian having responsibility for the care of the animal. The temporary permit described in this subsection expires twenty days after the examination. If the applicant fails for good and sufficient reason to take the examination, the board, by majority consent, may extend the permit until the next succeeding examination. Except as otherwise provided in this section, the holder of a temporary permit must be examined and satisfactorily pass the license examination next following the issuance of the permit and duly receive a license in order to continue active professional practice. The temporary permit may be extended only one time. For the purposes of this subsection, "direct and personal instruction, control or supervision" means that a veterinarian who is licensed by the board is physically present and personally supervising a temporary permittee when the permittee is practicing acts of veterinary medicine except if the permittee is at a temporary site for the purpose of delivering services to large animals or if the permittee is administering emergency services not during regular office hours. In these cases, phone contact constitutes direct and personal instruction, control or supervision.

C. If an employer, for any reason, terminates the employment of the applicant, the employing veterinarian shall notify the board and the temporary permit described in subsection B of this section is immediately void.

D. An emergency temporary permit that is issued to an individual who is a veterinarian licensed in good standing in another state entitles the individual to provide voluntary veterinary care during a state of emergency or local emergency for the sole purpose of assisting in care related to that emergency. The emergency temporary permit expires ninety days after the date of issuance or at the end of the state of emergency or local emergency, whichever occurs first. An applicant for an emergency temporary permit shall submit a complete application, including information regarding veterinary licensure in any other state and verification that the statutes and rules pertaining to the board have been reviewed. The board shall verify whether the veterinarian is licensed in the state or states indicated and confirm the applicant's good standing. The applicant is not required to pass the state veterinary examination. A veterinarian who is issued an emergency temporary permit under this section shall practice in accordance with all laws and rules related to the practice of veterinary medicine in this state. The board may investigate any alleged violation by a holder of an emergency temporary permit and take disciplinary action as prescribed in this chapter. A veterinarian granted an emergency temporary permit under this section is a licensed, certified or authorized emergency responder pursuant to section 49-133 and an emergency worker as defined in section 26-301.

E. For the purposes of this section, "emergency temporary permit" means a temporary permit that is issued to a veterinarian who is licensed in another state and who enters this state to provide voluntary services during a state of emergency as declared by the governor or a local emergency declared by a county board of supervisors pursuant to section 26-311.

§ 32-2217 Employees of the state or political subdivisions; licensure

The board shall issue a license to any person who is not licensed by examination to practice veterinary medicine in this state and who is employed as a veterinarian by this state or any political subdivision. An applicant for a license under the terms of this section shall apply in writing to the board as required by section 32-2213 and shall meet the qualifications prescribed by section 32-2215 with the exception of section 32-2215, subsection A, paragraph 2. The holder of a license issued under the terms of this section shall engage only in such actions of the practice of veterinary medicine as authorized by the board, and acts of practice may not be performed for any person or firm other than this state or the political subdivision employing the licensee. The licensee is subject to the rules of the board and this chapter relating to unprofessional or dishonorable conduct. A license expires on December 31 of every even-numbered year unless suspended or revoked. A license is renewable for two years on payment of the renewal fee. The fee for issuance of the license shall be $5 in even-numbered years and $10 in odd-numbered years, and the biennial renewal fee shall be $10. The license shall be revoked on termination of employment of the licensee.

§ 32-2217.01 Issuance of permit to nonresident

A. The board may issue to a person residing within twenty-five miles of Arizona in the state of California, Colorado, Nevada, New Mexico or Utah, who is licensed to practice veterinary medicine in the state of residence and whose practice extends into this state, a permit in the form prescribed by the board authorizing such extended practice in this state.

B. Application for a permit shall be made upon a form provided by the board. The application shall contain an irrevocable consent that actions arising out of or involving the permittee's practice of veterinary medicine in this state may be commenced within this state by service of pleadings or process upon the board, which shall forward to the permittee by certified mail a duplicate copy of the pleading or process.

C. The permittee shall be subject to the rules of the board and the provisions of this chapter relating to the practice of veterinary medicine and relating to unprofessional or dishonorable conduct.

D. A permit issued under the provisions of this section expires on December 31 of every even numbered year unless suspended or revoked. The fee for issuance of the permit is fifty dollars in even numbered years and one hundred dollars in odd numbered years. The biennial renewal fee is one hundred dollars.

§ 32-2218 License renewal and reinstatement

A. Except as provided in subsection D of this section or section 32-4301, a license issued under this chapter remains in effect until December 31 of every even-numbered year unless it is suspended or revoked. Except as provided in section 32-4301, on submittal of an application for renewal and payment of a renewal fee, a license is renewed for two years.

B. Failure to pay the license fee before February 1 following expiration of the license shall be a forfeiture of the license, and the license shall not be restored except upon written application to the board and payment of a penalty fee of fifty dollars in addition to all regular license fees and past due fees owed to the board. A person applying for reinstatement of a license within thirty-six months of expiration shall not be required to submit to an examination because of failure to pay the license fee, but it is unlawful for a person to practice veterinary medicine or any branch of veterinary medicine during the period in which the person's license has been forfeited by reason of nonpayment of the license fee. If an applicant for reinstatement of a license has not completed the continuing education requirements, a license may be reinstated if the continuing education requirements are completed within six months of reinstatement. A person who does not apply for reinstatement within thirty-six months after expiration of the license must meet the requirements set forth in sections 32-2213, 32-2214 and 32-2215.

C. An application for renewal shall include a signed statement that no complaint has been filed and is pending, no investigation is pending and no disciplinary action has been taken or is pending on any veterinary license the veterinarian holds from another state.

D. A veterinary faculty member license issued under this chapter remains in effect until December 31 of every even-numbered year unless it is suspended or revoked or unless the licensee is no longer employed by the veterinary college. If the licensee is no longer employed by the veterinary college, the license expires on the date of the separation of employment.

§ 32-2219 Fees; veterinary licenses; veterinary faculty member licenses

A. Every original application for a veterinary license or a veterinary faculty member license shall be accompanied by an examination fee of not more than four hundred dollars.

B. For every issuance of a veterinary license or a veterinary faculty member license there shall be collected a fee of not more than one hundred dollars in even-numbered years and two hundred dollars in odd-numbered years.

C. For every renewal of a veterinary license or a veterinary faculty member license there shall be collected a fee of not more than four hundred dollars.

D. Every request for a temporary permit shall be accompanied by a fee of seventy-five dollars.

E. For every issuance of a duplicate license, there shall be collected a fee of not more than twenty-five dollars.

F. No fee shall be returned to an applicant.

Article 3 Regulation

§ 32-2231 Acts constituting the practice of veterinary medicine; exceptions; definitions

A. A person shall be regarded as practicing veterinary medicine, surgery and dentistry within the meaning of this chapter who, within this state:

1. By advertisement, or by any notice, sign or other indication, or by a statement written, printed or oral, in public or in private, made, done or procured by the person or any other at the person's request claims, announces, makes known or pretends ability or willingness to diagnose any animal condition, disease, deformity, defect, wound or injury or to perform any type of surgical procedure on animals.

2. Advertises or makes known or claims ability and willingness to perform the following for hire, fee, compensation or reward that is directly or indirectly promised, offered, expected, received or accepted:

(a) Prescribe or administer any drug, medicine, treatment, method or practice for any animal.

(b) Perform any operation or manipulation on or apply any apparatus or appliance to any animal.

(c) Give any instruction or demonstration for the cure, amelioration, correction or reduction or modification of any animal condition, disease, deformity, defect, wound or injury.

3. Diagnoses or prognosticates any animal condition, disease, deformity, defect, wound or injury for hire, fee, reward or compensation that is directly or indirectly promised, offered, expected, received or accepted.

4. Prescribes or administers any drug, medicine, treatment, method or practice, performs any operation or manipulation, or applies any apparatus or appliance for the cure, amelioration, correction or modification of any animal condition, disease, deformity, defect, wound or injury for hire, fee, compensation or reward that is directly or indirectly promised, offered, expected, received or accepted.

B. This section does not apply to:

1. Duly authorized representatives of the United States department of agriculture in the discharge of any duty authorized by the director in charge of the animal disease eradication division.

2. A certified veterinary technician performing a task or function authorized by the rules of the board in the employ of and under the direction, supervision and control of a licensed veterinarian or a licensed veterinary faculty member.

3. An equine dental practitioner if all of the following apply:

(a) The equine dental practitioner is certified by the international association of equine dentistry or the academy of equine dentistry.

(b) The equine dental practitioner performs any of the following procedures under the general supervision of a licensed veterinarian:

(i) The application of any apparatus used to work on the oral cavity.

(ii) The examination of dental conditions.

(iii) The removal of overgrowth from the teeth of horses and the removal of sharp enamel points from the teeth of horses, excluding any extractions unless the certified equine dental practitioner is under the direct supervision of a licensed veterinarian.

(iv) Any treatment of the oral cavity as authorized by the animal's owner, excluding any extractions unless the certified equine dental practitioner is under the direct supervision of a licensed veterinarian.

(c) The equine dental practitioner provides both of the following to the board:

(i) Proof of current certification from the international association of equine dentistry or the academy of equine dentistry.

(ii) A written statement signed by the supervising veterinarian that the certified equine dental practitioner will be under the general or direct supervision of the licensed veterinarian when performing the procedures prescribed by this paragraph.

(d) Both the supervising veterinarian and the certified equine dental practitioner maintain dental charts for procedures done pursuant to this paragraph.

4. A veterinary student who performs acts of health care or prescribed veterinary procedures as a part of the student's educational experience if both of the following apply:

(a) The acts are assigned by a licensed veterinarian or a licensed veterinary faculty member who is responsible for the animal's care.

(b) The student works under the direct supervision of a licensed veterinarian or a licensed veterinary faculty member.

5. An acupuncturist who is treating an animal pursuant to section 32-3928 and who is in compliance with all of the following:

(a) Is nationally certified by the American board of animal acupuncture or the national certification commission for acupuncture and oriental medicine to treat animals.

(b) Provides proof of current certification in animal acupuncture to the acupuncture board of examiners.

(c) Has received a referral for acupuncture treatment from a licensed veterinarian who has diagnosed the animal.

(d) Maintains records on every animal and provides the records to the treating veterinarian on request.

(e) Maintains adequate insurance to specifically cover any injuries to the animal, the animal's owner or staff members working on the animal.

(f) If the acupuncturist is not providing the treatment in a licensed veterinary premises that is operated by a licensed veterinarian, complies with all of the following:

(i) The animal is not treated in the same area as human patients.

(ii) The premises has secured areas to contain animals safely during any treatment.

(iii) The staff is trained to properly hold any animal being treated.

(iv) Protocols are in place to handle emergency situations that may arise with the animal that is being treated.

(v) Sanitation protocols are in place to ensure human and animal safety.

(vi) Any rules adopted by the acupuncture board of examiners.

(g) Assesses and treats the animal consistent with the licensed acupuncturist's training and, on request, communicates the findings, treatment and results to the treating licensed veterinarian in a timely manner. On request, the treating licensed veterinarian shall provide the treating acupuncturist with all medical information that may assist in the treatment of the animal.

(h) Is solely liable for the acupuncture treatment provided to the animal that is also under the care of a licensed veterinarian.

6. A rabies vaccinator who is certified pursuant to section 32-2240.02.

C. Notwithstanding subsection B, paragraph 3 of this section, only a licensed veterinarian and not an equine dental practitioner may prescribe or administer, or both prescribe and administer, any drug or medicine.

D. For the purposes of this section:

1. "Direct supervision" means a licensed veterinarian must authorize and be physically present for the procedure.

2. "General supervision" means a licensed veterinarian must be available for consultation by telephone or other form of immediate communication.

§ 32-2232 Unprofessional or dishonorable conduct

As used in this chapter, unprofessional or dishonorable conduct includes:

1. The fraudulent use of any certificate or other official form used in practice that would increase the hazard of dissemination of disease, the transportation of diseased animals or the sale of inedible food products of animal origin for human consumption.

2. Inadequate methods in violation of meat inspection procedures prescribed by the federal government and Arizona meat inspection laws or wilful neglect or misrepresentation in the inspection of meat.

3. Misrepresentation of services rendered.

4. Failure to report, or the negligent handling of, the serious epidemic diseases of animals, such as anthrax, rabies, glanders, brucellosis, tuberculosis, foot and mouth disease, hog cholera, and other communicable diseases known to medical science as being a menace to human or animal health.

5. The dispensing or giving to anyone of live culture or attenuated live virus vaccines to be administered by a layman without providing instruction as to their administration and use.

6. Having professional connection with, or lending one's name to, any illegal practitioner of veterinary medicine and the various branches thereof.

7. Chronic inebriety or unlawful use of narcotics, dangerous drugs or controlled substances.

8. Fraud or dishonesty in applying or reporting on any test or vaccination for disease in animals.

9. False, deceptive or misleading advertising, having for its purpose or intent deception or fraud.

10. Conviction of a crime involving moral turpitude, or conviction of a felony.

11. Malpractice, gross incompetence or gross negligence in the practice of veterinary medicine.

12. Violation of the ethics of the profession as defined by rules adopted by the board.

13. Fraud or misrepresentation in procuring a license.

14. Knowingly signing a false affidavit.

15. Distribution of narcotics, dangerous drugs, prescription-only drugs or controlled substances for other than legitimate purposes.

16. Violation of or failure to comply with any state or federal laws or regulations relating to the storing, labeling, prescribing or dispensing of controlled substances or prescription-only drugs as defined in section 32-1901.

17. Offering, delivering, receiving or accepting any rebate, refund, commission, preference, patronage, dividend, discount or other consideration, whether in the form of money or otherwise, as compensation or inducement for referring animals or services to any person.

18. Violating or attempting to violate, directly or indirectly, or assisting or abetting the violation or conspiracy to violate any of the provisions of this chapter, a rule adopted by the board or a written order of the board.

19. Failing to dispense drugs and devices in compliance with article 7 of this chapter.

20. Performing veterinary services without adequate equipment and sanitation considering the type of veterinary services provided.

21. Failure to maintain adequate records of veterinary services provided.

22. Medical incompetence in the practice of veterinary medicine.

23. Cruelty to or neglect of animals. For the purposes of this paragraph, "cruelty to or neglect of animals" means knowingly or negligently torturing, beating or mutilating an animal, killing an animal in an inhumane manner or depriving an animal of necessary food, water or shelter.

24. Representing that the veterinarian is a specialist if the veterinarian lacks the credentials to be a specialist.

25. Performing veterinary services without having a valid veterinarian client patient relationship.

26. Releasing, prescribing or dispensing any prescription drugs in the absence of a valid veterinarian client patient relationship.

§ 32-2233 Revocation or suspension of license or permit; civil penalty; report of perjury

A. The board, by majority consent, may revoke or suspend a permit or license granted to any person under this chapter or may impose a civil penalty of not to exceed one thousand dollars against any veterinarian or the responsible veterinarian, or both, for:

1. Unprofessional or dishonorable conduct.

2. Publicly professing to cure or treat diseases of a highly contagious, infectious and incurable nature.

3. Curing or treating an injury or deformity in such a way as to deceive the public.

4. Testing any animal for any communicable disease and knowingly stating verbally or in writing that the animals are diseased or in a disease-free condition if the statement is contrary to the indication of the test made.

B. The board may sanction any of the following conduct as an administrative violation, rather than unprofessional conduct, and may impose a civil penalty of not more than one thousand dollars for any of the following:

1. Failure to timely renew the veterinary license or the premises license while continuing to practice veterinary medicine or conducting business from that premises.

2. Failure to notify the board in writing within twenty days of any change in residence, practice, ownership, management or responsible veterinarian.

3. Minor records violations that are routine entries into a medical record and that do not affect the diagnosis or care of the animal.

C. The civil penalties collected pursuant to this chapter shall be deposited in the state general fund.

D. The board may report to the proper legal authorities for perjury anyone it suspects of giving deliberate, fraudulent testimony whether the testimony is given personally, telephonically or in writing.

§ 32-2234 Informal and formal hearings; censure or probation; notice; consent agreements; rehearing; judicial review

A. If the board receives information indicating that a veterinarian may have engaged in unprofessional or dishonorable conduct, and if it appears after investigation that the information may be true, the board may issue a notice of formal hearing or the board may request an informal interview with the veterinarian. If the veterinarian refuses the interview, and other evidence indicates suspension or revocation of the veterinarian's license may be in order, or if the veterinarian accepts and the results of the interview indicate suspension or revocation of the veterinarian's license may be in order, the board shall issue a notice of formal hearing and proceed pursuant to title 41, chapter 6, article 10. If the veterinarian refuses the interview, and other evidence relating to the veterinarian's professional competence indicates that disciplinary action should be taken other than suspension or revocation of the veterinarian's license, or if the veterinarian accepts the informal interview and the informal interview and other evidence relating to the veterinarian's professional competence indicate that disciplinary action should be taken other than suspension or revocation of the veterinarian's license, the board may take any or all of the following actions:

1. Issue a decree of censure.

2. Fix a period and terms of probation as are best adapted to protect the public and rehabilitate or educate the veterinarian. The terms of probation may include temporary suspension, for not to exceed thirty days, or restriction of the veterinarian's license to practice. The failure to comply with any term of the probation is cause to consider the entire case plus any other alleged violations of this chapter at a formal hearing pursuant to title 41, chapter 6, article 10.

3. Impose a civil penalty of not to exceed one thousand dollars per violation.

B. Notwithstanding subsection A of this section, the board may require a veterinarian or certified veterinary technician under investigation to be interviewed by the board or its representatives. The board may require a licensee or certificate holder who is under investigation pursuant to subsection A of this section to undergo at the licensee's or certificate holder's expense any combination of medical, physical or mental examinations that the board finds necessary to determine the veterinarian's or the certified veterinary technician's condition.

C. On receipt of an allegation of drug or alcohol abuse, the board or the executive director acting with the approval of both a veterinarian member and a public member of the board may require a licensee or certificate holder who is under investigation pursuant to subsection A of this section to undergo, at the licensee's or certificate holder's expense, testing or examination to detect the presence of alcohol or other drugs.

D. If, as a result of information ascertained during an investigation, informal interview or formal hearing of a veterinarian, the board has concern for the veterinarian's conduct but has not found the veterinarian's conduct in violation of section 32-2232, the board in its discretion may issue a letter of concern to the veterinarian regarding the veterinarian's conduct or issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

E. Notwithstanding subsection A of this section, the board may enter into a consent agreement with a veterinarian either before or after conducting an informal interview. Pursuant to a consent agreement, the board may take any of the disciplinary actions listed in subsection A, paragraphs 1, 2 and 3 of this section or may act to otherwise limit or restrict the veterinarian's practice or to rehabilitate the veterinarian.

F. If the board finds, based on information it receives pursuant to this section, that public or animal health, safety or welfare requires emergency action, and incorporates a finding that emergency action is necessary in its order, the board may order summary suspension of a license pending proceedings for revocation or other action. If the board orders a summary suspension, the board shall serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing before the board or an administrative law judge within sixty days pursuant to title 41, chapter 6, article 10.

G. Before a permit or license may be revoked or suspended for any cause provided by section 32-2233, other than by terms of probation, the board must serve notice and conduct a hearing in the manner prescribed by title 41, chapter 6, article 10.

H. After service of notice of the decision of the board suspending or revoking a license, censuring a licensee, placing a licensee on probation or dismissing the complaint, the licensee may apply for a rehearing or review by filing a motion pursuant to title 41, chapter 6, article 10. The filing of a motion for rehearing shall be a condition precedent to the right of appeal provided by this section. The filing of a motion for rehearing shall suspend the operation of the board's action in suspending or revoking a license or censuring or placing a licensee on probation and shall allow the licensee to continue to practice as a veterinarian pending denial or granting of the motion and pending the decision of the board on rehearing if the motion is granted. The board may also grant a rehearing on its own motion, if it finds newly discovered evidence or any other reason justifying a reconsideration of the matter.

I. Except as provided in section 41-1092.08, subsection H, any party aggrieved by a final order or decision of the board may appeal to the superior court pursuant to title 12, chapter 7, article 6.

J. If the state veterinary medical examining board acts to modify any veterinarian's prescription writing privileges, it shall immediately notify the Arizona state board of pharmacy of the modification.

K. All notices that the board is required to provide to any person under this chapter are fully effective by personal service or by mailing a true copy of the notice by certified, return receipt mail addressed to the person's last known address of record in the board's files. Notice by mail is complete at the time of its deposit in the mail. Service on any person represented in a matter by an attorney is complete when the notice is sent to the attorney at the last known address of record in the board's files.

L. The board shall retain all complaint files for at least ten years and shall retain all complaint files in which disciplinary action was taken for at least twenty-five years.

§ 32-2235 Complaints

A. Any person may file a complaint against a licensee for a violation of this chapter. Except as provided in subsection C, complaints shall be submitted in proper form and signed by the complainant. Each complaint shall be turned over to an appointed staff investigator who shall compile the written complaint and the written response and may verify statements and any evidence submitted by the complainant and the respondent.

B. If after completion of this preliminary investigation the staff investigator believes that there would not be a violation of this chapter if the allegations were proven to be true or if the complaint does not fall under the jurisdiction of the board, the board shall review the written information and investigative report at a scheduled board meeting at which time the board may dismiss the complaint or proceed as otherwise authorized.

C. A complaint may be anonymous if it is regarding either of the following:

1. Substance abuse by a veterinarian or certified veterinary technician.

2. A person committing the unlicensed practice of veterinary medicine.

D. The board, on its own initiative and based on information from any source, may investigate any alleged violation of this chapter.

§ 32-2236 Refusal to issue or renew license; reapplication

A. The board, by majority consent, may refuse to issue or renew a permit or license for any of the causes prescribed in section 32-2233. The procedure for refusal to issue or renew a license or permit, or both, shall be as provided in section 32-2234.

B. If a permit or license is not issued or renewed, such person may not apply for a permit or license until six months have elapsed from the date of refusal, and the new application shall be accompanied with the regular examination fee and the license fee.

§ 32-2237 Committee to investigate violations; referral to county attorney or attorney general; inspection of records; subpoenas; civil penalty; injunctions; cease and desist orders; confidentiality

A. The board shall appoint one or more investigative committees, each consisting of three licensed veterinarians who are not board members and two members of the general public who are not board members. The board shall appoint and dismiss members of investigative committees. Each member shall serve for a term of two years. A committee member may not serve more than four consecutive terms. A member of the investigative committee must resign when the member files an application to serve on the board. A quorum for an investigative committee shall include at least three members, at least two of whom must be veterinarians.

B. The investigative committee may interview witnesses, gather evidence and otherwise investigate any allegations accusing any person of violating any of the provisions of this chapter. An assistant attorney general shall advise the investigative committee on all questions of law arising out of its investigations. The expenses of the committee shall be paid out of the veterinary medical examining board fund.

C. The investigative committee shall prepare a written report relating to any allegations it investigates. The committee shall present its report to the board in an open meeting. The report shall include:

1. A summary of the investigation.

2. Findings of fact.

3. Either a recommendation to dismiss the allegation made in the complaint or a finding that a violation of this chapter or a rule adopted pursuant to this chapter occurred.

D. If the board rejects any recommendation contained in a report of the investigative committee, it shall document the reasons for its decision in writing.

E. Upon the complaint of any citizen of this state, or upon its own initiative, the board may investigate any alleged violation of this chapter. If after investigation the board has probable cause to believe that an unlicensed person is performing acts that are required to be performed by a person licensed pursuant to this chapter, the board may take one or more of the following enforcement actions:

1. Issue a cease and desist order.

2. Request the county attorney or attorney general to file criminal charges against the person.

3. File an action in the superior court to enjoin the person from engaging in the unlicensed practice of veterinary medicine.

4. After notice and an opportunity for a hearing, impose a civil penalty of not more than one thousand dollars for each violation.

F. The board or its agents or employees may at all reasonable times have access to and the right to copy any documents, reports, records or other physical evidence of any veterinarian, including documents, reports, records or physical evidence maintained by and in the possession of any veterinary medical hospital, clinic, office or other veterinary medical premises being investigated, if such documents, records, reports or other physical evidence relates to a specific investigation or proceeding conducted by the board.

G. The board on its own initiative or upon application of any person involved in an investigation or proceeding conducted by the board may issue subpoenas compelling the attendance and testimony of witnesses or demanding the production for examination or copying of documents, reports, records or any other physical evidence if such evidence relates to the specific investigation or proceeding conducted by the board.

H. Except as provided in this subsection, all materials, documents and evidence associated with a pending or resolved complaint or investigation are confidential and are not public records. The following materials, documents and evidence are not confidential and are public records if they relate to resolved complaints:

1. The complaint.

2. The response and any rebuttal statements submitted by the licensee or certificate holder.

3. Board discussions of complaints that are recorded pursuant to section 32-2204, subsection C.

4. Written reports of an investigative committee that are prepared pursuant to subsection C of this section.

5. Written statements of the board that are prepared pursuant to subsection D of this section.

§ 32-2238 Violations; classification

A. A person is guilty of a class 1 misdemeanor who:

1. Practices veterinary medicine or surgery under an assumed name.

2. Falsely impersonates another practitioner.

3. Fraudulently obtains a veterinary medical diploma, license or record of registration.

4. Practices veterinary medicine or surgery without a license and registration.

5. Unlawfully assumes or advertises a veterinary title conveying the impression that the person is a lawful practitioner.

6. Knowingly violates any other provision of this chapter.

B. This chapter does not prohibit any of the following:

1. A person from practicing veterinary medicine or any of its branches in partnership with another practitioner, or under a partnership or firm name, if the partnership or firm is clearly identified as that of a practicing veterinarian, and if all members of the partnership or firm are licensed to practice veterinary medicine by the board.

2. A veterinary student from performing acts of health care or prescribed veterinary procedures as a part of the student's educational experience if both of the following apply:

(a) The acts are assigned by a licensed veterinarian or a licensed veterinary faculty member who is responsible for the animal's care.

(b) The student works under the direct supervision of a licensed veterinarian or a licensed veterinary faculty member.

3. A licensed veterinary faculty member from performing the licensed veterinary faculty member's regular clinical functions, from giving lectures, instructions or demonstrations or from practicing veterinary medicine as a veterinary faculty member in connection with continuing education courses or seminars to licensed veterinarians, certified veterinary technicians, veterinary students or veterinary technician students.

§ 32-2239 Duty of veterinarian to report suspected abuse, cruelty, neglect or animal fighting; immunity

A. A veterinarian who reasonably suspects or believes that an animal has been a victim of abuse, cruelty or neglect or has been involved in animal fighting shall report that suspicion, or cause a report to be made, to law enforcement within forty-eight hours after treatment or examination. The report shall include the breed and description of the animal and the name and address of the owner or person who sought the examination or treatment. Veterinary records shall be provided to local law enforcement on request in furtherance of any criminal investigation for abuse, cruelty, neglect or animal fighting.

B. A veterinarian shall report, in writing, suspected cases of abuse of livestock to the associate director of the division of animal services in the Arizona department of agriculture pursuant to title 3, chapter 11, article 1. The report shall be made within forty-eight hours after treatment or examination and shall include the breed and description of the animal together with the name and address of the owner.

C. A veterinarian who files a report as provided in this section shall be immune from civil liability with respect to any report made in good faith.

§ 32-2239.01 Duty to report; clients seeking controlled substances; immunity

A. A veterinarian who reasonably suspects or believes that a client or person is trying to obtain controlled substances with an intent other than to treat the patient animal shall report that suspicion, or cause a report to be made, to local law enforcement within forty-eight hours after the treatment or examination. The report shall include the name and address of the client or person who sought the examination or treatment. The veterinary records pertaining to the investigation initiated pursuant to the report to law enforcement under this subsection shall be provided to local law enforcement on request for any further criminal investigation.

B. A veterinarian who files a report or causes a report to be filed pursuant to subsection A of this section is immune from civil liability with respect to any report made in good faith.

§ 32-2239.02 Duty of veterinarian to scan for presence of microchip; owner notification

For all stray dogs and cats brought to a veterinary premises, the veterinarian shall thoroughly scan for the presence of a microchip and make a reasonable effort to contact the owner.

§ 32-2240 Reporting of unprofessional conduct; immunity

A. Any person may report to the board any information the person has that appears to show that a veterinarian is or may be medically incompetent or is or may be guilty of:

1. Unprofessional conduct.

2. Animal abuse.

B. A person who reports information to the board in good faith pursuant to this section is immune from civil liability.

§ 32-2240.01 Burial in landfill; notification requirement; licensed crematory

A. If an animal dies in the care of a veterinarian or an animal's owner brings a dead animal to a veterinarian and the animal's owner requests that the animal be buried, the veterinarian shall notify the owner if the burial is to be done in a landfill.

B. If the owner chooses cremation and a veterinarian offers cremation services, the veterinarian shall use a crematory licensed pursuant to article 8 of this chapter.

§ 32-2240.02 Certified rabies vaccinators; training; renewal

A. A licensed veterinarian may appoint a person who is not a veterinarian licensed pursuant to section 32-2212 as a certified rabies vaccinator to administer rabies vaccines on the premises of a shelter or animal rescue organization facility that is located in a county with a population of less than four hundred thousand persons or a census county division with less than fifty thousand persons in a county with a population of four hundred thousand persons or more if a licensed veterinarian is not available.

B. The licensed veterinarian who made the appointment shall provide in-person training to each person appointed to administer rabies vaccines pursuant to subsection A of this section. On satisfactory completion of this training, the licensed veterinarian who made the appointment shall certify in writing that the person has demonstrated the knowledge and skills acceptable to administer rabies vaccines.

C. Initial certification of rabies vaccinators under this section is valid for one year. Subsequent certifications under this section are valid for two years and must be renewed as prescribed by the state veterinarian pursuant to section 11-1002.

D. The certified rabies vaccinator shall maintain records of all vaccinations administered for three years and shall notify the veterinarian who made the appointment of any adverse events.

E. A licensed veterinarian who appoints a certified rabies vaccinator is not liable for any action taken by a certified rabies vaccinator in the course of administering a rabies vaccine.

§ 32-2240.03 Veterinarian client patient relationship through electronic means; consent; prescriptions; scope of practice

A. Notwithstanding any other law and except for an animal that is used in commercial food production that is regulated under title 3, a veterinarian may establish a veterinarian client patient relationship through electronic means if all of the following apply:

1. The veterinarian is licensed pursuant to this chapter or holds a permit pursuant to section 32-2217.01.

2. The veterinarian obtains informed consent from the client, including an acknowledgement that the standards of care prescribed by this chapter apply to in-person visits and visits through electronic means. The veterinarian shall maintain for at least three years documentation of the consent described in this paragraph.

3. The veterinarian provides the client with the veterinarian's name and contact information and secures an alternate means of contacting the client if the electronic means is interrupted. The electronic or written record provided to the client after the telemedicine visit must include the veterinarian's license number.

4. Before conducting an evaluation of the patient through electronic means, the veterinarian advises the client of all of the following:

(a) The veterinarian may ultimately recommend an in-person visit.

(b) The veterinarian is prohibited by federal law from prescribing some drugs or medications based only on an electronic examination.

(c) The appointment through electronic means may be terminated at any time.

5. The veterinarian is able to recommend the client to a local veterinarian who can see the animal in person. The client has the option to choose an in-person visit.

B. A veterinarian may prescribe drugs or medications after establishing a veterinary client patient relationship through electronic means, except that:

1. Prescriptions based only on an electronic examination may be initially issued for up to fourteen days and may be renewed one time for up to fourteen days with an additional electronic examination.

2. Prescriptions based only on electronic examinations and that have been renewed once may not be renewed again without an in-person examination.

3. The veterinarian must notify the client that some prescription drugs or medications may be available at a pharmacy and, if requested, the veterinarian will submit a prescription to a pharmacy that the client chooses.

4. The veterinarian may not order, prescribe or make available a controlled substance as defined in section 36-2501 unless the veterinarian has performed an in-person physical examination of the patient or made medically appropriate and timely visits to the premises where the patient is kept.

5. The veterinarian shall prescribe all drugs and medications in accordance with all federal and state laws.

C. Veterinarian services provided through electronic means are subject to the rules adopted pursuant to section 32-2275 relating to the practice of veterinary medicine.

Article 4 Certification of Veterinary Technicians

§ 32-2241 Certified veterinary technician; services performed

A certified veterinary technician may perform those services authorized by the board pursuant to section 32-2245 in the employ of and under the direction, supervision and control of a licensed veterinarian who shall be responsible for the performance of the certified veterinary technician. Compensation for such authorized services shall be derived solely from the employing veterinarian.

§ 32-2242 Application for certification as veterinary technician; qualifications

A. A person desiring to be certified as a veterinary technician shall apply in writing to the board on a form furnished by the board.

B. The applicant shall be at least eighteen years of age and shall furnish satisfactory evidence of graduation from a two-year curriculum in veterinary technology, or the equivalent of such graduation as determined by the board, in a college or other institution approved by the board.

C. The application shall be accompanied by the application and examination fee established by the board.

D. An applicant from another state is not required to retake the veterinary technician national examination if the applicant can provide all of the following:

1. Proof that the applicant's original score meets the minimum score required by the board.

2. Proof that the applicant holds an active license in good standing in another state or in Canada.

3. Proof of employment as a veterinary technician in two of the preceding four years or four of the preceding seven years.

§ 32-2243 Examination

The board shall adopt rules and regulations governing the written examinations and practical demonstrations by which all applicants shall be tested and shall provide for giving reasonable notice of the time and place for examinations.

§ 32-2244 Certificate

An applicant who passes the examination prescribed by the board, on payment of the fee established by the board within one year after passing the examination, shall receive a certificate in a form prescribed by the board.

§ 32-2245 Certified veterinary technician; services; rules and regulations

A. The board shall adopt rules and regulations pertaining to and limiting the services performed by a certified veterinary technician.

B. Services performed by a certified veterinary technician shall not include surgery, diagnosis or prognosis of animal diseases or prescribing of drugs and medicine.

§ 32-2246 Duration of certificate

A certificate issued pursuant to this article shall expire on December 31 of every even-numbered year unless suspended or revoked. On payment of the renewal fee, a certificate is renewed for a period of two years.

§ 32-2247 Renewal of expired certificates

Except as otherwise provided in this article, an expired certificate may be renewed at any time within three years after its expiration on filing of application for renewal on a form prescribed by the board and payment of the renewal fee in effect on the last preceding regular renewal date. Except as provided in section 32-4301, if the certificate is renewed more than thirty days after its expiration, the applicant as a condition precedent to renewal shall also pay the delinquency fee established by the board. Renewal under this section shall be effective on the date on which the application is filed, on the date the renewal fee is paid or on the date on which the delinquency fee, if any, is paid, whichever occurs last.

§ 32-2248 Renewal of certification; certificates expired three years or more

Except as provided in section 32-4301, a person who fails to renew a certificate within three years after its expiration may not renew it, and it shall not be restored, reissued or reinstated thereafter, but the person may apply for and obtain a new certificate if:

1. No fact, circumstance or condition exists that, if the certificate were issued, would justify its revocation or suspension.

2. The applicant takes and passes the examination, if any, which would be required on application for certification for the first time.

3. All fees are paid that would be required on application for certification for the first time.

§ 32-2249 Disciplinary action; grounds; emergency care by technician; letter of concern

A. Except as provided in subsection B of this section, the board may:

1. Take one or more of the following actions:

(a) Revoke or suspend a certificate.

(b) Issue a decree of censure.

(c) Place a certified veterinary technician on probation.

(d) Impose a civil penalty not to exceed one thousand dollars per violation.

2. Take one or more of the actions described in paragraph 1 for any of the following reasons:

(a) The employment of fraud, misrepresentation or deception in obtaining certification.

(b) Conviction on a charge of cruelty to animals or conviction of a felony, in which case the record of such conviction will be conclusive evidence.

(c) Chronic inebriety or habitual use of narcotics, dangerous drugs or controlled substances.

(d) Gross ignorance or inefficiency in connection with the performance of technical procedures in veterinary medicine.

(e) Representing himself as a doctor of veterinary medicine.

(f) Violating or attempting to violate, directly or indirectly, or assisting or abetting the violation or conspiracy to violate any of the provisions of this chapter, a rule adopted under this chapter or a written order of the board issued pursuant to this chapter.

(g) Practicing veterinary medicine.

(h) Gross incompetence or gross negligence.

(i) Following orders that are in violation of this chapter or rules adopted pursuant to this chapter.

B. In an emergency, a certified veterinary technician may render emergency care or first aid if the technician is supervised telephonically by a licensed veterinarian or until a licensed veterinarian arrives. This does not preclude emergency care as outlined in section 32-2261.

C. If the board receives information indicating that a certified veterinary technician may have engaged in unprofessional or dishonorable conduct and it appears after investigation that the information may be true, the board may request an informal interview. If the certified veterinary technician refuses the interview or if other evidence relating to the technician's professional competence indicates that disciplinary action should be taken, the board may take the action as prescribed by subsection A of this section.

D. If, as a result of information ascertained during an investigation, informal interview or formal hearing of a certified veterinary technician, the board has concern for the certified veterinary technician's conduct but has not found the conduct to be a reason listed in subsection A of this section, the board may issue a letter of concern to the technician regarding the technician's conduct.

§ 32-2250 Veterinary technician certificate fees

The board shall establish the fees provided for in this article in amounts not to exceed the following:

1. Application and examination fee, one hundred fifty dollars.

2. Issuance of a certificate fee, twenty-five dollars in even-numbered years and fifty dollars in odd-numbered years.

3. Renewal fee, one hundred dollars.

4. Delinquency fee, twenty-five dollars.

5. Duplicate certificate fee, twenty dollars.

Article 5 Emergency Aid

§ 32-2261 Emergency aid; nonliability

Any person licensed or certified pursuant to this chapter who gratuitously and in good faith gives emergency treatment to a sick or injured animal at the scene of an emergency shall not be liable in damages to the owner of such animal in the absence of gross negligence.

Article 6 Registration of Veterinary Medical Premises

§ 32-2271 License required; premises; inspections; exemption

A. A person shall not provide veterinary services, including diagnosis, treatment, dentistry, surgery or dispensing prescription-only veterinary drugs, to the public without a license issued by the board.

B. A premises license shall be for a fixed location where a veterinarian retains the records of a veterinary practice, stores veterinary equipment or offers veterinary services to the public. A responsible veterinarian who holds a premises license may provide veterinary services to the public at the licensed fixed location and any temporary site in this state at which adequate equipment and sanitation are available considering the type of veterinary medical services provided. A veterinarian shall obtain a separate premises license for each fixed location at which veterinary services are regularly offered to the public. The responsible veterinarian may authorize other licensed veterinarians to provide services to the public pursuant to the responsible veterinarian's veterinary premises license. Both the responsible veterinarian and the veterinarian who provides the veterinary services shall maintain records of the veterinary services provided and ensure that adequate equipment and sanitation are available.

C. The board shall inspect all fixed locations before issuing a premises license. Adequate equipment and sanitation shall be available for use at any location which is necessary to provide the range of veterinary services which the veterinarian proposes to offer.

D. The board may inspect any site at which a veterinarian offers veterinary services to the public.

E. This section does not apply to county-sponsored rabies vaccination clinics, persons who are exempt under section 32-2211 and veterinarians licensed under section 32-2217.

§ 32-2272 Veterinary premises license; application; nontransferability; expiration; renewal; civil penalty

A. Any person who desires to establish premises at or from which veterinary services are offered to the public shall file with the board an application for a veterinary premises license accompanied by the license fee.

B. The application shall be on a form prescribed and furnished by the board and shall contain:

1. The name and location of the premises.

2. The name of the person owning the premises and the name and signature of the veterinarian responsible to the board for the operation of the premises. The responsible veterinarian shall be a veterinarian who is licensed in this state and who resides in this state or who holds a special permit under section 32-2217.01, except that a veterinarian who only provides services at a temporary site in the state does not have to reside in this state.

3. A description of the services provided at or from the premises.

C. A license is valid only for the responsible veterinarian to whom it is issued. A license is not subject to sale, assignment or transfer, voluntary or involuntary. A license is not valid for any premises other than those for which issued. If there have been major changes in the scope of veterinary services offered, the premises are subject to reinspection.

D. A change of responsible veterinarian or owner shall cancel a premises license. The responsible veterinarian or owner shall surrender the premises license to the board within twenty days of the change in responsible veterinarian or owner. The failure of the responsible veterinarian or owner to notify the board in writing within twenty days of a change in responsible veterinarian or owner is grounds for disciplinary action.

E. Except as provided in section 32-4301, a license expires on December 31 of every even-numbered year unless suspended or revoked. A license is renewable for two years upon payment of the renewal fee. If the renewal fee is not paid before February 1 following the expiration of the license, a penalty fee of one hundred dollars shall be paid in addition to the renewal fee before the premises may be relicensed.

F. Within ninety days of receipt of an initial application and fee, the board shall issue a license if the application demonstrates compliance with this article or shall notify the applicant at his last address of record if the application is not in conformance with this article. Veterinary medical services may be performed at any premises for which an application fee is submitted pending issuance of the license or notification of a deficiency in the application.

G. If a veterinary premises ceases to operate and the premises owner is subject to this chapter, the premises owner must continue to comply with the requirements of this chapter and rules adopted by the board. The premises owner is subject to a civil penalty of not more than one thousand dollars for each violation of the requirements of this chapter or rules adopted by the board. The total penalty shall not exceed five thousand dollars.

H. If the responsible veterinarian is only an employee, the premises owner is subject to a civil penalty of not more than one thousand dollars for each violation of this article. The total penalty shall not exceed five thousand dollars.

§ 32-2273 Premises license fees

The board may establish and collect in advance fees, not to exceed the following:

1. For issuance of a license:

(a) In an odd-numbered year, one hundred dollars.

(b) In an even-numbered year, fifty dollars.

2. For renewal of a license, two hundred dollars.

3. For a duplicate license, twenty dollars.

§ 32-2274 Grounds for refusal to issue or renew license or for disciplinary action; procedure

A. The board may take disciplinary action against the responsible veterinarian, may place the responsible veterinarian on probation or may revoke, suspend, refuse to issue or refuse to renew a premises license for any of the following grounds:

1. Failure to notify the board in writing within twenty days of a change of ownership, management or responsible veterinarian.

2. Failure to maintain clean and sanitary facilities for the performance of services in accordance with the rules adopted by the board.

3. A violation of section 32-2233 or any rule adopted pursuant to that section.

4. Failure to maintain accurate records or reports as required by this chapter or by federal or state laws and rules pertaining to the storing, labeling, selling, dispensing, prescribing and administering of controlled substances.

5. Failure to maintain veterinary medical supplies, controlled substances and surgical and other equipment in a safe, efficient and sanitary manner.

6. Failure to keep written records of all animals receiving veterinary services, failure to provide a summary of such records upon request to the client or failure to produce such records at the request of the board.

7. Revocation or suspension of the license to practice veterinary medicine of the responsible veterinarian holding the veterinary medical premises license.

8. Failure of the responsible veterinarian to maintain a current license to practice veterinary medicine.

9. Failure of the responsible veterinarian to maintain a current premises license to provide veterinary services to the public at a fixed location.

10. Failure of emergency or twenty-four hour facilities to give copies of medical records to the owner or the owner's agent on release of an animal.

B. If the board receives information indicating that disciplinary action should be taken against the responsible veterinarian or a veterinary premises license, and if it appears after investigation that the information may be true, the board may issue a notice of formal hearing or the board may hold an informal interview. If the results of the informal interview indicate suspension or revocation of the responsible veterinarian's license or the premises license or other action may be in order, the board shall issue a notice of formal hearing and proceed pursuant to title 41, chapter 6, article 10. If the informal interview and other evidence indicate that disciplinary action should be taken other than suspension or revocation, the board may take any one or a combination of the following actions:

1. Issue a decree of censure.

2. Fix such period and terms of probation as are best adapted to protect the public and rehabilitate or educate the responsible veterinarian or veterinary premises license holder. The terms of probation may include temporary suspension for not to exceed thirty days. The failure to comply with any term of the probation is cause to consider the entire case plus any other alleged violations of this chapter at a formal hearing pursuant to title 41, chapter 6, article 10.

3. Impose a civil penalty of not more than one thousand dollars for each violation.

C. Before a license may be revoked or suspended for any cause provided by subsection A of this section, the board shall serve notice and conduct a hearing in the manner prescribed by title 41, chapter 6, article 10.

§ 32-2275 Rules; adoption; considerations

The board may adopt rules setting forth minimum standards for veterinary medical premises and for the practice of veterinary medicine. The board shall, in the development of these rules, take into consideration the needs, problems and practices relating to the differences encountered by large animal veterinarians and other veterinarians and shall also consider the different needs, problems and practices encountered in the provision of veterinary services in rural or remote locations in comparison with the provision of veterinary services at the veterinarian's principal place of business.

§ 32-2276 Retention of jurisdiction

The lapsing or suspension of a license by operation of law or by order of the board or a court of law or the voluntary surrender of a license does not deprive the board of jurisdiction to do any of the following:

1. Proceed with any investigation of or action or disciplinary proceeding against the licensee.

2. Render a decision suspending or revoking the license or denying the renewal or right of renewal of the license.

3. Assess a civil penalty pursuant to section 32-2233 or section 32-2237, subsection E.

Article 7 Dispensing of Drugs and Devices

§ 32-2281 Dispensing of drugs and devices; conditions; definition

A. A veterinarian may dispense drugs and devices kept by the veterinarian if:

1. All prescription-only drugs are dispensed in packages labeled with the following information:

(a) The dispensing veterinarian's name, address and telephone number.

(b) The date the drug is dispensed.

(c) The animal owner's name and the animal's or herd's identification.

(d) The name, strength and quantity of the drug, directions for its use and any cautionary statements.

2. The dispensing veterinarian enters into the medical record the name, strength and quantity of the drug dispensed, the date the drug is dispensed and the therapeutic reason.

B. A veterinarian dispensing a schedule II controlled substance or a benzodiazepine shall comply with the following:

1. Limit the initial amount of a schedule II controlled substance dispensed by the veterinarian to a five-day supply at a dosage clinically appropriate for the animal being treated. A prescription that is filled at a pharmacy is not subject to this limit.

2. Limit the initial amount of a benzodiazepine dispensed by the veterinarian to a fourteen-day supply at a dosage clinically appropriate for the animal being treated. A prescription that is filled at a pharmacy is not subject to this limit.

3. For treatment of an animal with a chronic condition that requires long-term use of a schedule II controlled substance or benzodiazepine, after the initial five-day or fourteen-day period pursuant to paragraph 1 or 2 of this subsection, dispense not more than a thirty-day supply at one time at a dosage clinically appropriate for the animal being treated. A prescription for a chronic condition that is filled at a pharmacy is not subject to this limit. For the purposes of this paragraph, "chronic condition" means a condition that requires ongoing treatment beyond the five-day or fourteen-day period prescribed in paragraph 1 or 2 of this subsection, including cancer, postsurgical treatment, posttraumatic injury, neuropathic pain, chronic severe cough, collapsing trachea and congestive heart failure.

C. The board shall adopt rules providing that the animal's owner or the person responsible for the animal shall be notified that some prescription-only drugs may be available at a pharmacy and a written prescription may be provided to the animal's owner or the person responsible for the animal if requested.

D. A veterinarian shall dispense only to the animal's owner or person responsible for the animal the veterinarian is treating and only for conditions being treated by that veterinarian. The veterinarian shall supervise the dispensing process. For the purposes of this subsection, "supervision" means that a veterinarian makes the determination as to the legitimacy or the advisability of the drugs or devices to be dispensed.

E. This section shall be enforced by the board, which shall establish rules regarding access to and labeling, recordkeeping, storage and packaging of drugs that are consistent with the requirements of chapter 18 of this title. The board may conduct periodic inspections of dispensing practices to ensure compliance with this section and applicable rules.

F. For the purposes of this section, "dispense" means the delivery by a veterinarian of a prescription-only drug or device to an animal, an animal's owner or the person responsible for an animal and includes the prescribing, administering, packaging, labeling, compounding and security necessary to prepare and safeguard the drug or device for delivery.

Article 8 Licensure of Animal Crematories

§ 32-2291 License requirements; inspections

A. An animal crematory license shall be for a fixed location where animal cremation occurs. A person who holds an animal crematory license may provide animal cremation services to the public at the licensed fixed location. There shall be a separate animal crematory license for each fixed location at which animal cremation services are regularly offered to the public.

B. The board shall inspect all fixed locations before issuing an animal crematory license. Adequate equipment and sanitation shall be available for use at any location that is necessary to provide the animal cremation services offered.

C. The board may inspect any animal crematory licensed pursuant to this article.

§ 32-2292 Animal crematory license; application; nontransferability; expiration; renewal

A. Any person who desires to establish premises at or from which animal cremation services are offered to the public shall file with the board an application for an animal crematory license accompanied by the license fee.

B. The application shall be on a form prescribed and furnished by the board and shall contain:

1. The name and location of the animal crematory.

2. The name of the person owning the animal crematory and the name and signature of the person responsible to the board for the operation of the animal crematory.

3. A description of the services provided at or from the animal crematory.

C. A license is not subject to sale, assignment or transfer, voluntary or involuntary. A license is not valid for any animal crematory other than that for which it is issued. If there are major changes in the scope of animal crematory services offered, the animal crematory is subject to reinspection.

D. A change of responsible owner cancels an animal crematory license. The responsible owner shall surrender the animal crematory license to the board within twenty days after the change in responsible owner. The failure of the responsible owner to notify the board in writing within twenty days after a change in responsible owner is grounds for disciplinary action.

E. Except as provided in section 32-4301, a license expires on December 31 of every even numbered year unless suspended or revoked. A license is renewable for two years on payment of the renewal fee. If the renewal fee is not paid before February 1 following the expiration of the license, a penalty fee of one hundred dollars shall be paid in addition to the renewal fee before the animal crematory may be relicensed.

F. Within ninety days after receipt of an initial application and fee, the board shall issue a license if the application demonstrates compliance with this article or shall notify the applicant at the last address of record if the application is not in conformance with this article. Animal cremation services may be performed at any animal crematory for which an application fee is submitted pending issuance of the license or notification of a deficiency in the application.

§ 32-2293 Animal crematory license fees

The board may establish and collect in advance fees for issuance of a license, renewal of a license and a duplicate license. The fees shall be determined by the board and accounted for in accordance with the provisions of section 32-2205.

§ 32-2294 Grounds for refusal to issue or renew license or for disciplinary action; procedure; civil penalty

A. The board may take disciplinary action against the animal crematory, including revoking, suspending, refusing to issue or refusing to renew an animal crematory license for any of the following grounds:

1. Failure to notify the board in writing within twenty days after a change of the person who owns the animal crematory or the person responsible for the operation of the animal crematory.

2. Failure to maintain clean and sanitary facilities for the performance of services in accordance with the rules adopted by the board.

3. Failure to keep written records of all animals receiving crematory services, failure to provide a summary of the records on request to the client or failure to produce the records at the request of the board.

4. Failure to maintain a current animal crematory license to provide crematory services to the public at a fixed location.

B. If the board receives information indicating that disciplinary action should be taken against an animal crematory license and if it appears after investigation that the information may be true, the board may issue a notice of formal hearing or the board may hold an informal interview. If the results of the informal interview indicate suspension or revocation of the animal crematory license or other action may be in order, the board shall issue a notice of formal hearing and proceed pursuant to title 41, chapter 6, article 10. If the informal interview and other evidence indicate that disciplinary action should be taken other than suspension or revocation, the board may take any one or a combination of the following actions:

1. Issue a decree of censure.

2. Fix such period and terms of probation as are best adapted to protect the public and rehabilitate or educate the animal crematory licensee. The terms of probation may include temporary suspension not to exceed thirty days. The failure to comply with any term of the probation is cause to consider the entire case and any other alleged violations of this chapter at a formal hearing pursuant to title 41, chapter 6, article 10.

3. Impose a civil penalty of not more than one thousand dollars for each violation. The total penalty shall not exceed five thousand dollars.

C. Before a license may be revoked or suspended for any cause provided by subsection A, the board shall serve notice and conduct a hearing in the manner prescribed by title 41, chapter 6, article 10.

§ 32-2295 Rules

The board may adopt rules setting forth minimum standards for animal crematories.

§ 32-2296 Retention of jurisdiction

The lapsing or suspension of a license by operation of law or by order of the board or a court of law or the voluntary surrender of a license does not deprive the board of jurisdiction to do any of the following:

1. Proceed with any investigation of or action or disciplinary proceeding against the licensee.

2. Render a decision suspending or revoking the license or denying the renewal or right of renewal of the license.

3. Assess a civil penalty pursuant to section 32-2233 or section 32-2237, subsection E.

§ 32-2297 Duty of animal crematory licensee to scan for presence of microchip; owner notification; exception

For all dogs and cats brought to a crematory by a person other than the dog's or cat's owner, the crematory licensee shall thoroughly scan for the presence of a microchip and make a reasonable effort to contact the owner, unless there is a written or electronic record that the dog or cat has been thoroughly scanned for the presence of a microchip and a reasonable effort has been made to contact the owner.

Chapter 23 Professional Driver Training Schools

Article 1 Administration

§ 32-2351 Definitions

In this chapter, unless the context otherwise requires:

1. "Agent" means any person who, for compensation, enrolls or attempts to enroll residents of this state in a professional driver training school through personal or telephone contact, advertisement, mail or any other type of publication.

2. "Director" means the director of the department of transportation.

3. "Instructor" means any person, whether acting for himself as an operator of a professional driver training school or for any such school for compensation, who teaches, conducts classes of, gives demonstrations to, or supervises the practice of persons learning to operate or drive motor vehicles or preparing to take an examination for a driver license or instruction permit, and any person who supervises the work of any other instructor.

4. "Professional driver training school" or "school" means a business enterprise conducted by an individual, association, partnership, or corporation that educates and trains persons, either practically or theoretically, or both, to operate or drive commercial motor vehicles, that prepares applicants for an examination given by the state for a commercial driver license or learner's permit and that charges a consideration or tuition for these services.

§ 32-2352 Enforcement; contract with private entity

A. The director, subject to title 41, chapter 6, shall adopt such rules concerning the administration and enforcement of this chapter as are necessary to carry out the intent of this chapter and to protect the public. The director or the director's authorized representative shall inspect the school facilities and equipment used by applicants and licensees under this chapter.

B. The director shall administer and enforce this chapter.

C. The director may contract with a private entity to conduct inspections pursuant to this section and to administer any rules adopted pursuant to this section that relate to the licensure and administration of professional driver training schools pursuant to this chapter. The term of any contract entered into pursuant to this subsection shall not exceed five years with a right to renew for an additional five years. The private entity that contracts with the director pursuant to this subsection:

1. Shall not provide professional driver training school courses.

2. May charge a fee to each person who enrolls in a professional driver training school.

§ 32-2353 Exemptions

This chapter does not apply to any person who gives driver training lessons without charge, to employers maintaining driver training schools without charge for their employees only or to schools or classes conducted by colleges, universities and high schools for regularly enrolled, full-time students as a part of the normal program for such institutions.

Article 2 Licensing

§ 32-2371 License for schools; requirements; fingerprint clearance card

A. A professional driver training school shall not be established and any such existing school shall not be continued on or after March 13, 1968 unless the school applies for and obtains from the director a license in the manner and form prescribed by the director.

B. Rules adopted by the director shall state the requirements for a school license, including requirements concerning location, equipment, courses of instruction, instructors, previous records of the school and instructors, schedule of fees and charges, insurance in such a sum and with such provisions as the director deems necessary to protect adequately the interests of the public, and such other matters as the director may prescribe for the protection of the public.

C. Each applicant who owns twenty percent or more of an entity, and each partner or stockholder who owns twenty percent or more of an entity, and who seeks licensure pursuant to this chapter shall provide the department or a contracted private entity of the department pursuant to section 32-2352 with a valid fingerprint clearance card issued pursuant to section 41-1758.03.

§ 32-2371.01 License for agents; requirements

A. The director may require an agent who operates from a location in this state and who solicits students on behalf of a professional driver training school that is located in this state or any other state to obtain a license in the manner and form prescribed by the director.

B. If the director requires licensure of agents, the director shall adopt rules that state the requirements for an agent license, including requirements concerning truthfulness and the adequacy of information provided by the agent to members of the public regarding the professional driver training school that the agent represents.

§ 32-2372.01 Commercial motor vehicle instructors; rules

On or before December 31, 2016 the director shall adopt rules to establish requirements and minimum standards for commercial motor vehicle instructors.

§ 32-2373 Refusal to issue or renew license of school or agent

A. The director may refuse to issue or renew the license for a school or an agent in any case in which the director determines that the licensee or applicant has not complied with, or has knowingly violated, any provision of this chapter or any rule adopted pursuant to this chapter by the director.

B. An applicant or licensee who is aggrieved by the director's decision may make a written request to the department for a hearing within thirty days after service of notice of the refusal. If the applicant or licensee does not request a hearing within thirty days, the decision is final. If the applicant or licensee requests a hearing, the director shall give written notice to the applicant or licensee to appear at the hearing and show cause why the refusal to issue or renew the license should not be upheld. After consideration of the evidence presented at the hearing, the director shall serve notice in writing to the applicant or licensee of the director's findings and order.

§ 32-2374 Fees

Except as provided in section 32-4301, all licenses expire on the last day of the calendar year and may be renewed on application to the director as prescribed by rule. Each application for an original or renewal license to operate a professional driver training school shall be accompanied by a fee of two hundred dollars. Each application for an original or renewal agent's license shall be accompanied by a fee of ten dollars. An application for a branch license shall be accompanied by a fee of fifty dollars. No license fee may be refunded in the event a license is suspended or revoked.

§ 32-2375 Disposition of fees

All monies received by the director from the fees provided in this article shall be deposited, pursuant to sections 35-146 and 35-147, in the state highway fund.

Article 3 Regulation

§ 32-2391 Suspension and revocation of license; determination; appeal

The director, after conducting a hearing for the licensee, may cancel, suspend or revoke the license of a school or agent in any case in which the director finds that the licensee has not complied with, or has knowingly violated, this chapter or any rule adopted under this chapter. Each cancelled, suspended or revoked license shall be returned to the director by the licensee. Decisions of the director shall be subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-2392 Violation; classification

A person who violates any provision of this chapter is guilty of a class 3 misdemeanor.

§ 32-2393 Liability insurance required; amount

Notwithstanding section 28-4009, a school shall obtain an automobile liability or motor vehicle liability policy which covers each motor vehicle operated by the school for driver training in the minimum amount of one hundred fifty thousand dollars because of bodily injury to or death of one person in any one accident, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, fifty thousand dollars because of injury to or destruction of property of others in any one accident and five thousand dollars medical payments coverage.

§ 32-2394 Cease and desist orders

A. If the director has reasonable cause to believe that a professional driver training school licensed pursuant to article 2 of this chapter has violated or is violating a law of this state or rule adopted by the director, the director may immediately issue and serve on the licensee, by personal delivery or first class mail at the business address of record, a cease and desist order requiring the licensee to immediately cease and desist from further engaging in the business or the prohibited activity, or both.

B. A licensee who receives a cease and desist order may submit a written request for a hearing to the director. The licensee shall submit the request for a hearing within thirty days after the licensee receives the cease and desist order. On failure of a licensee to comply with the order or after a requested hearing, the director may suspend or cancel the licensee's license pursuant to section 32-2391.

Chapter 24 Private Investigators

Article 1 General Provisions

§ 32-2401 Definitions

In this chapter, unless the context otherwise requires:

1. "Advertising" means the submission of bids, contracting or making known by any public notice, publication or solicitation of business, directly or indirectly, that services regulated under this chapter are available for consideration.

2. "Agency license" means a certificate that is authenticated by the department and that attests that a qualifying party is authorized to conduct the business of private investigations in this state.

3. "Applicant" means a person who has submitted a completed application and all required application and fingerprint processing fees.

4. "Associate" means a person who is a partner or corporate officer in a private investigation agency.

5. "Board" means the private investigator and security guard hearing board established by section 32-2404.

6. "Conviction" means an adjudication of guilt by a federal, state or local court resulting from trial or plea, including a plea of no contest, regardless of whether the adjudication of guilt was set aside or vacated.

7. "Department" means the department of public safety.

8. "Director" means the director of the department of public safety.

9. "Emergency action" means a summary suspension of a license pending revocation, suspension or probation in order to protect the public health, safety or welfare.

10. "Employee" means an individual who works for an employer, is listed on the employer's payroll records and is under the employer's direction and control.

11. "Employer" means a person who is licensed pursuant to this chapter, who employs an individual for wages or salary, who lists the individual on the employer's payroll records and who withholds all legally required deductions and contributions.

12. "Identification card" means a card issued by the department to a qualified applicant for an agency license, an associate or a registrant.

13. "Insurance adjuster" means a person other than a private investigator who, for any consideration, engages in any of the activities prescribed in the definition of private investigator in this section in the course of adjusting or otherwise participating in the disposal of any claim under or in connection with a policy of insurance.

14. "Letter of concern" means an advisory letter to notify a private investigator that while there is insufficient evidence to support probation or suspension or revocation of a license the department believes the private investigator should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the department may result in further disciplinary action against the private investigator's license.

15. "Licensee" means a person to whom an agency license is granted pursuant to this chapter.

16. "Private investigator" means a person other than an insurance adjuster or an on-duty peace officer as defined in section 1-215 who, for any consideration, engages in business or accepts employment to:

(a) Furnish, agree to make or make any investigation for the purpose of obtaining information with reference to:

(i) Crime or wrongs done or threatened against the United States or any state or territory of the United States.

(ii) The identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation or character of any person or group of persons.

(iii) The credibility of witnesses or other persons.

(iv) The whereabouts of missing persons, owners of abandoned property or escheated property or heirs to estates.

(v) The location or recovery of lost or stolen property.

(vi) The causes and origin of, or responsibility for, a fire, libel, slander, a loss, an accident, damage or an injury to real or personal property.

(b) Secure evidence to be used before investigating committees or boards of award or arbitration or in the trial of civil or criminal cases and the preparation therefor.

(c) Investigate threats of violence and provide the service of protection of individuals from serious bodily harm or death.

17. "Qualifying party" means the individual meeting the qualifications under this chapter for an agency license.

18. "Registrant" means an employee of a licensed agency qualified to perform the services of the agency.

19. "Registration certificate" means a certificate that is authenticated by the department and that attests that an employee of a business holding an agency license has satisfactorily complied with article 3 of this chapter.

20. "Restructuring" means any change in a business' legal status.

21. "Unprofessional conduct" means any of the following:

(a) Engaging or offering to engage by fraud or misrepresentation in activities regulated by this chapter.

(b) Aiding or abetting a person who is not licensed pursuant to this chapter in representing that person as a private investigator in this state.

(c) Gross negligence in the practice of a private investigator.

(d) Failing or refusing to maintain adequate records and investigative findings on a client. For purposes of this subdivision, "adequate records" means records containing, at a minimum, sufficient information to identify the client, the dates of service, the fee for service, the payments for service, the type of service given and copies of any reports that may have been made.

(e) Committing a felony or a misdemeanor involving any crime that is grounds for denial, suspension or revocation of a private investigator license or employee identification card. In all cases, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

(f) Making a fraudulent or untrue statement to the department, the board or its investigators, staff or consultants.

§ 32-2402 Administration by director; duty to keep records; rules; criminal history records checks

A. The director of the department of public safety shall administer this chapter.

B. The department shall keep a record of:

1. All applications for licenses or registrations under this chapter.

2. All bonds and proof of workers' compensation required to be filed.

3. Whether a license, registration certificate, renewal license or renewal registration certificate has been issued under each application and bond.

4. If a license or registration certificate is revoked, suspended, cancelled or denied or if a licensee or registrant is placed on probation, the date of filing the order for revocation, suspension, cancellation, denial or probation.

5. All individuals, firms, partnerships, associations or corporations that have had a license or registration revoked, suspended or cancelled or that have been placed on probation and a written record of complaints filed against licensees and registrants.

C. The department shall maintain all records kept pursuant to subsection B of this section for at least five years. The records, except the financial statement of licensees, are open to inspection as public records.

D. The director shall adopt and enforce rules that are not in conflict with the laws of this state and that are necessary to enforce this chapter.

E. The director may conduct periodic criminal history records checks pursuant to section 41-1750 for the purpose of updating the licensing and registration status of current license and registration holders.

§ 32-2404 Private investigator and security guard hearing board; qualifications; appointments; terms; compensation; immunity

A. The private investigator and security guard hearing board is established consisting of seven members and an alternate member who are appointed by the director.

B. Each member of the board shall be a citizen of the United States and a resident of this state at the time of appointment. Two members shall be qualifying parties who are licensed as provided in this chapter. Two members shall be qualifying parties who are licensed as provided in chapter 26 of this title. Two members shall be certified peace officers with a rank of at least lieutenant who are not employees of the department. One member shall be a public member who shall not have a financial interest in a private investigation or security guard agency and shall not have an immediate family member or a household member who is licensed or registered under this chapter or chapter 26 of this title or who is a certified peace officer. The alternate member shall be a public member who does not have a financial interest in a private investigation or security guard agency and does not have an immediate family member or a household member who is licensed or registered under this chapter or chapter 26 of this title or who is a certified peace officer.

C. Each member of the board shall serve for a staggered term of five years beginning and ending on the third Monday in January. The alternate member shall serve a five year term beginning and ending on the third Monday in January. A member, including the alternate member, shall not serve more than one term, except that a member appointed to fill a vacancy may be reappointed for one full term. If a qualified replacement has not been found by the end of the member's term, the director may extend the member's term for no more than six months or until a replacement is found, whichever occurs first.

D. The director shall fill a vacancy on the board occurring other than by the expiration of term by appointment of a member for the unexpired term as provided in subsection C of this section. The director, after a hearing, may remove any member of the board for misconduct, incompetency or neglect of duty.

E. Members of the board, including the alternate member, are eligible to receive compensation pursuant to section 38-611 for each day actually and necessarily spent in the performance of their duties.

F. Members of the board, including the alternate member, are personally immune from suit with respect to all acts done and actions taken in good faith and in furtherance of the purposes of this chapter.

§ 32-2405 Powers and duties of hearing board

A. The board shall:

1. Submit recommendations to the director on disciplinary actions or the denial of licenses or registrations.

2. Annually elect from its membership a chairman and a secretary, who serve at the pleasure of the board.

3. Determine good cause exceptions pursuant to sections 32-2412 and 32-2609.

4. Adopt rules to establish good cause exceptions for the issuance of licenses or registrations pursuant to this chapter and chapter 26 of this title.

5. Furnish a copy of its rules, on request, to all applicants who petition the board for a good cause exception pursuant to sections 32-2459, 32-2640 and 32-2641.

B. The board may:

1. Take and hear evidence, administer oaths and affirmations and compel by subpoena the attendance of witnesses and the production of books, papers, records, documents and other information relating to an investigation or hearing.

2. Annually review the security guard and armed security guard training curricula and make recommendations to the department for the modification of or update to training courses prescribed in section 32-2632 and the addition of continuing education courses.

§ 32-2406 Hearings and special meetings

A. The board shall hold hearings at a time and place determined by the director. The board may hold special meetings the chairman determines necessary to carry out the functions of the board.

B. A majority of board members, regardless of board vacancies, constitutes a quorum and a majority vote of a quorum present is necessary for the board to take any action.

§ 32-2407 Fees; renewal of agency licenses and associate or employee registration certificates

A. The department shall charge and collect reasonable fees as determined by the director to cover the operational and equipment costs of regulating the private investigator industry.

B. Except as provided in section 32-4301, the director may renew an agency license or a registration certificate granted under this chapter after receiving an application on such forms as the department prescribes and receiving the fees prescribed pursuant to subsection A of this section. The renewal of an agency license requires the filing of a surety bond as prescribed in section 32-2423, subsections B and C. A licensee or registrant may not engage in any activity subject to this chapter during any period between the date of expiration of the agency license or registration certificate and the renewal of the agency license or registration certificate.

C. The department shall renew a suspended agency license or registration certificate as provided in this article. Renewal of the agency license or registration certificate does not entitle the licensee or registrant, while the agency license or registration certificate remains suspended and until it is reinstated, to engage in any activity regulated by this chapter, or in any other activity or conduct in violation of the order or judgment by which the agency license or registration certificate was suspended.

D. The director shall not reinstate a revoked agency license or registration certificate. The director shall not accept an application for an agency license or registration certificate from a person whose agency license or registration certificate has been revoked until at least one year after the date of revocation.

§ 32-2408 Department of public safety licensing fund

A. A department of public safety licensing fund is established consisting of fees collected pursuant to this chapter and chapter 26 of this title.

B. The director shall administer the fund. Monies in the fund are continuously appropriated to the director to cover the operational and equipment costs of regulating the private investigator and security guard industry.

§ 32-2409 Exemptions

This chapter does not apply to:

1. An officer or employee of the federal government, this state or a political subdivision of this state, while engaged in the official performance of the officer's or employee's duties.

2. A person, firm or corporation, or an employee of a person, firm or corporation, engaged in the business of obtaining and furnishing financial and related personal information for others, including a consumer reporting agency as defined in the fair credit reporting act (15 United States Code section 1681a), if the person, firm or corporation does not engage in other investigative research that is an investigative consumer report as defined in the fair credit reporting act (15 United States Code section 1681a) and if the employee is not employed or connected with any private investigator or private investigator's business.

3. A practicing attorney involved in a case for which the attorney has been retained or a person employed under an employee-employer relationship with a practicing attorney, in the employee's performance of duties related to a case for which the attorney has been retained.

4. A collection agency licensed in this state, or its employee while acting within the scope of employment, while making an investigation incidental to the business of the agency, including an investigation of the location of a debtor or the debtor's property if the contract with an assignor creditor is for the collection of claims owed or due or asserted to be owed or due or its equivalent.

5. Insurance producers, adjusters and agents licensed by this state in performing their duties in connection with insurance transacted by them.

6. The legal owner of personal property that has been sold under a sales agreement in making investigations relating to the sales agreement.

7. A member of the news media and its employees when engaged in obtaining information for the purpose of disseminating news to the public.

8. Public service corporations engaged in transmitting messages, furnishing public telegraph or telephone service or investigating the use or misuse of their equipment and facilities or the use or misuse of the equipment and facilities of any connecting telecommunications company.

9. Private process servers who are duly registered and performing their duties pursuant to the Arizona rules of civil procedure.

10. A person, firm or corporation, or an employee of a person, firm or corporation, that, for any consideration, observes consumer purchases of products or services in the public environments of a business establishment for the purpose of evaluating customer service, operational procedures, cleanliness, product quality and availability if all of the following apply:

(a) The information is obtained from questionnaires that the business establishment approves in advance of use.

(b) The obtained information is used for employee training or incentives.

(c) The obtained information is not used for prosecution of an employee.

(d) The business establishment does not use a single evaluation as the only basis for an employee's termination from employment.

11. A person or entity that is performing duties pursuant to statute and that is certified or registered by the supreme court.

§ 32-2410 Power of local authorities

This chapter does not prevent a political subdivision of this state from imposing local regulation on any person engaged in the business of accepting employment for the location or recovery of personal property that is sold under conditional sales agreements or that is subject to the terms of a chattel mortgage, but the political subdivision may not assess an additional fee.

§ 32-2411 License required; violation; classification

A. A person shall not act or attempt to act as a private investigator or represent that the person is a private investigator unless the person is registered as a private investigator pursuant to this chapter and is acting within the scope of the person’s employment for an agency that is licensed pursuant to article 2 of this chapter.

B. A person who knowingly violates this section is guilty of a class 1 misdemeanor.

§ 32-2412 Good cause exceptions for misdemeanor and felony offenses

A. If a person shows at a hearing to the board's satisfaction that the person is not awaiting trial on or has not been convicted of committing any of the offenses listed in section 41-1758.03, subsection B, the board may grant a good cause exception for the following:

1. A misdemeanor offense if the person completed all terms of sentencing.

2. A felony offense if ten of more years have passed since the person completed all terms of sentencing.

B. Before granting a good cause exception at a hearing the board shall consider all of the following in accordance with board rule:

1. The extent of the person's criminal record.

2. The length of time that has elapsed since the offense was committed.

3. The nature of the offense.

4. Evidence supporting any applicable mitigating circumstances.

5. Evidence supporting the degree to which the person participated in the offense.

6. Evidence supporting the extent of the person's rehabilitation, including:

(a) Completion of probation, parole or community supervision.

(b) Whether the person paid restitution or other compensation for the offense.

(c) Evidence of positive action to change criminal behavior, such as completion of a drug treatment program or counseling.

(d) Personal references attesting to the person's rehabilitation.

C. If seeking a good cause exception, at least five days before the hearing the applicant shall submit to the department any evidence the applicant will be presenting at the hearing.

§ 32-2413 Reciprocal agreements

A. The department may enter into a reciprocal agreement with a state that has private investigator qualification laws substantially similar to this chapter to allow a private investigator license or registration to be used by the licensee or registrant within the jurisdiction of either this state or the other state. The department may enter into the agreement if the issuing authority for the other state meets all of the following conditions:

1. Issues a private investigator identification card with an expiration date printed on the card.

2. Is available to verify the license or registration status for law enforcement purposes within three business days after a request for verification.

3. Has disqualification, suspension and revocation requirements for licenses and registrations.

4. Requires that the applicant for a license or registration submit to a criminal history records check pursuant to section 41-1750 and applicable federal law.

B. The reciprocal agreement shall be limited and is intended only to allow private investigators to continue investigations that originate in the investigator’s home state and that require investigation in another state. The reciprocal agreement shall include the following provisions:

1. The private investigator shall possess a private investigator license or registration in good standing.

2. The private investigator shall spend no more than thirty days per case while conducting an investigation in this state.

3. The private investigator shall provide written notification to the department describing the case and the dates to be worked in this state on the case.

4. The private investigator shall not solicit any business while in this state.

§ 32-2414 Licensure or registration of peace officers prohibited

The department may not issue a license or registration certificate pursuant to this chapter to a peace officer, including a reserve peace officer. This section does not apply to retired peace officers or peace officers, including reserve peace officers, who are accident reconstructionists or fire origin and cause investigators.

Article 2 Agency Licenses

§ 32-2421 Qualifying party

A. An applicant for an agency license must have a qualifying party.

B. For a sole proprietorship, the qualifying party shall be the agency licensee.

C. For a partnership, corporation or limited liability company, the qualifying party shall be the individual who is responsible for managing the agency. All other partners or corporate officers shall register as associates pursuant to article 3 of this chapter.

D. If required, the qualifying party shall maintain workers’ compensation insurance in effect.

§ 32-2422 Qualification of applicant for agency license; substantiation of work experience

A. An applicant as a qualifying party for an agency license under this chapter shall:

1. Be at least twenty-one years of age.

2. Be a citizen or legal resident of the United States who is authorized to seek employment in the United States.

3. Not have been convicted of any felony or currently be under indictment for a felony.

4. Within the five years immediately preceding the application for an agency license, not have been convicted of any misdemeanor act involving:

(a) Personal violence or force against another person or threatening to commit any act of personal violence or force against another person.

(b) Misconduct involving a deadly weapon as provided in section 13-3102.

(c) Dishonesty or fraud.

(d) Arson.

(e) Theft.

(f) Domestic violence.

(g) A violation of title 13, chapter 34 or 34.1 or an offense that has the same elements as an offense listed in title 13, chapter 34 or 34.1.

(h) Sexual misconduct.

5. Not be on parole, on community supervision, on work furlough, on home arrest, on release on any other basis or named in an outstanding arrest warrant.

6. Not be serving a term of probation pursuant to a conviction for any act of personal violence or domestic violence, as defined in section 13-3601, or an offense that has the same elements as an offense listed in section 13-3601.

7. Not be either of the following:

(a) Adjudicated mentally incompetent.

(b) Found to constitute a danger to self or others pursuant to section 36-540.

8. Not have a disability as defined in section 41-1461, unless that person is a qualified individual as defined in section 41-1461.

9. Not have been convicted of acting or attempting to act as a private investigation agency or a private investigator without a license if a license was required.

10. Have had a minimum of three years of full-time investigative experience or the equivalent of three years of full-time investigative experience that consists of actual work performed as an investigator for a private concern, for the federal government or for a state, county or municipal government.

11. Not be a registered sex offender.

B. If the applicant for an agency license is a firm, partnership, association or corporation, the qualifications required by subsection A of this section are required of the individual in active management who shall be the qualifying party of the firm, partnership, association or corporation.

C. Applicants for an agency license shall substantiate investigative work experience claimed as years of qualifying experience and provide the exact details as to the character and nature of the experience on a form prescribed by the department and certified by the employers. On written request, an employer shall submit to the employee a written certification of prior work experience within thirty days. The written certification is subject to independent verification by the director. If an employer goes out of business, the employer shall provide all employees with a complete and accurate record of their work history. If applicants are unable to supply written certification from an employer in whole or in part, applicants may offer written certification from persons other than an employer covering the same subject matter for consideration by the department. The burden of proving the minimum years of experience is on the applicant.

D. The department may deny an agency license if the department determines that the applicant does not meet the requirements of this section.

§ 32-2423 Application for agency license; financial responsibility; notice and opportunity to supply additional information

A. Every application for an original or renewal agency license to engage in the private investigator business shall set forth verified information to assist the department in determining the applicant's ability to meet the requirements prescribed in this chapter and shall contain the following:

1. The full name and business address of the applicant.

2. The name under which the applicant intends to do business.

3. A statement as to the general nature of the business in which the applicant intends to engage.

4. If the applicant is other than an individual, the full name and residence address of each of its associates.

5. A verified statement of the applicant's experience and qualifications.

6. Photographs of the applicant of a number and type prescribed by the department.

7. Fingerprints of the applicant of a quality and number prescribed by the department for the purpose of obtaining state and federal criminal records checks pursuant to section 41-1750 and Public Law 92-544. The department may exchange this fingerprint data with the federal bureau of investigation. The department may conduct periodic criminal history checks to ensure continued qualification under this chapter.

8. Such other information, evidence, statements or documents as the director may reasonably require.

9. The fee prescribed pursuant to section 32-2407.

B. Before the issuance of an original or renewal agency license the applicant shall provide to the department:

1. A surety bond in the amount of $2,500.

2. A certificate of workers' compensation insurance, if applicable.

C. The bond shall be executed and acknowledged by the applicant as principal and by a corporation licensed to transact fidelity and surety business in this state as surety. The bond shall be continuous in form and shall run concurrently with the license period. The bond required by this section shall be in favor of the state for the benefit of any person injured by any acts of a private investigator or the private investigator’s agency or employees and is subject to claims by any person who is injured by these acts.

D. The department shall cancel the agency license of any licensed agency on the cancellation of the surety bond. The qualifying party may reinstate the agency license on filing:

1. A surety bond that is concurrent with the remainder of the license period.

2. Payment of the reinstatement fee prescribed pursuant to section 32-2407.

E. If an application is incomplete, the department shall notify the applicant pursuant to section 41-1074. If the department requires additional information to make a decision on licensure, the department shall notify the applicant pursuant to section 41-1075. The department shall send notices under this subsection to the applicant's last known residential address and shall include sufficient information to assist the applicant in completing the application process. The applicant has forty-five calendar days after the date of notification to provide the additional documentation. If the applicant fails to respond within forty-five calendar days, the application and any registration certificates issued are automatically suspended until the department receives the necessary documentation to approve or deny the application.

§ 32-2425 Issuance of agency license and identification card; deadline for completing application; transfer of license prohibited

A. The department shall issue an agency license to any applicant that complies with this chapter. Each agency license shall contain the name and address of the licensee and the number of the agency license and shall be issued for a period of four years.

B. On the issuance of an agency license, an identification card described in section 32-2461 shall be issued without charge to the licensee if an individual, or if the licensee is other than an individual, to the licensee's qualifying party, and to each of the licensee's associates and directors. The identification card is evidence that the licensee is duly licensed pursuant to this chapter. If a person to whom the card of a licensee other than an individual is issued terminates the person's position, office or association with the licensee, the person shall surrender the identification card to the licensee and within five business days the licensee shall mail or deliver the identification card to the director for cancellation. If the person fails or refuses to surrender the identification card to the licensee, the licensee shall notify the director within five business days of the termination of the person's position, office or association with the licensee.

C. On notification by the department to an applicant that the agency license is ready for issuance, the applicant shall complete the application process within ninety calendar days. Failure to complete the process shall result in the application being cancelled and all fees shall be forfeited by the applicant. Subsequent application by the same applicant requires the payment of all application and license fees prescribed pursuant to section 32-2407.

D. A licensee shall notify the director in writing within thirty calendar days of any change in the name or address of the licensee's business and of any change of associates.

E. All new associates shall submit applications on forms prescribed by the director.

F. An agency license issued under this chapter is not transferable or assignable.

§ 32-2426 Branch office certificate

A. No licensee may establish a branch office of a licensed agency unless the department has issued a branch office certificate.

B. A branch office certificate authorizes the qualifying party of an agency licensee to conduct the business of private investigations in this state at a location other than the principal place of business shown on the agency license.

C. An application for a branch office certificate shall be on such form as the director prescribes.

D. The branch office certificate shall be issued in the name of the licensed agency only.

Article 3 Registration Certificates

§ 32-2441 Qualification of applicant for associate or employee registration

An applicant for an associate or employee registration certificate shall:

1. Be at least eighteen years of age.

2. Be a citizen or legal resident of the United States who is authorized to seek employment in the United States.

3. Not have been convicted of any felony or currently be under indictment for a felony.

4. Within the five years immediately preceding the application for an associate or employee registration certificate, not have been convicted of any misdemeanor act involving:

(a) Personal violence or force against another person or threatening to commit any act of personal violence or force against another person.

(b) Misconduct involving a deadly weapon as provided in section 13-3102.

(c) Dishonesty or fraud.

(d) Arson.

(e) Theft.

(f) Domestic violence.

(g) A violation of title 13, chapter 34 or 34.1 or an offense that has the same elements as an offense listed in title 13, chapter 34 or 34.1.

(h) Sexual misconduct.

5. Not be on parole, on community supervision, on work furlough, on home arrest, on release on any other basis or named in an outstanding arrest warrant.

6. Not be serving a term of probation pursuant to a conviction for any act of personal violence or domestic violence, as defined in section 13-3601, or an offense that has the same elements as an offense listed in section 13-3601.

7. Not be either of the following:

(a) Adjudicated mentally incompetent.

(b) Found to constitute a danger to self or others pursuant to section 36-540.

8. Not have a disability as defined in section 41-1461, unless that person is a qualified individual as defined in section 41-1461.

9. Not have been convicted of acting or attempting to act as a private investigator without a license if a license was required.

10. Not be a registered sex offender.

§ 32-2442 Application for employee registration certificate; registration period cancellation

A. Every application for an employee registration certificate shall provide verified information to assist the department in determining the applicant's ability to meet the requirements prescribed in this chapter, as follows:

1. The full name and address of the applicant.

2. The name of the agency for which the applicant will be an employee.

3. Authorization of the qualifying party or the qualifying party's designee to issue an employee registration.

4. Fingerprints of the applicant of a quality and number prescribed by the department for the purpose of obtaining state and federal criminal records checks pursuant to section 41-1750 and Public Law 92-544. The department may exchange this fingerprint data with the federal bureau of investigation. The department may conduct periodic criminal history checks to ensure continued qualification under this chapter.

5. Photographs of the applicant of a number and type prescribed by the department.

6. Such other information, evidence, statements or documents as the department may reasonably require.

B. An application for issuance of an employee registration certificate or renewal shall be accompanied by the fee prescribed pursuant to section 32-2407.

C. An original employee registration certificate is valid from the date of issuance to the date of expiration of the agency license under which the employee is employed. The renewal period of an employee registration certificate runs concurrently with the agency license. An employee registration certificate may be denied as prescribed in section 32-2459 and shall be canceled on the cancellation, termination or revocation of the agency license under which the employee registration certificate is issued.

D. An employee registration certificate or renewal shall not be issued to an applicant unless the employer has on file with the department evidence of current workers' compensation coverage. An employee registration certificate is cancelled on cancellation of the employer's workers' compensation coverage and may be reinstated only on verification of the reinstatement of workers' compensation coverage and payment of the reinstatement fee prescribed pursuant to section 32-2407.

E. If an application is incomplete, the department shall notify the applicant pursuant to section 41-1074. If the department requires additional information to make a decision on registration, the department shall notify the applicant pursuant to section 41-1075. The department shall send notices issued under this subsection to the applicant’s last known residential address and shall include sufficient information to assist the applicant to complete the application process. The applicant has forty-five calendar days after the date of notification to provide the additional documentation. If the applicant fails to respond within forty-five calendar days, the application and any registration certificates issued are automatically suspended until the department receives the necessary documentation to approve or deny the application.

§ 32-2443 Employee identification card required; denial

A. Each employee of an agency licensed under this chapter shall obtain an identification card, except those employees engaged exclusively in clerical and office work.

B. The department may issue an identification card to an applicant who, on initial application for a registration certificate, complies with the application requirements of section 32-2442, subsection D and who on the face of the application appears to meet the requirements of section 32-2441. On completion of the investigation of the applicant's qualifications, the department may deny the applicant's registration as prescribed in section 32-2459.

C. On termination of a registered employee from a licensed agency, the employee shall immediately surrender the identification card to the agency's qualifying party or designee. The qualifying party or designee shall forward the registrant's identification card to the department within five business days of receipt. If the employee fails or refuses to surrender the card to the qualifying party or designee, the qualifying party or designee shall notify the director within five business days of the termination of the employment with the licensee.

Article 4 Regulation

§ 32-2451 Impersonation of a public officer; display of identification

A. No licensee, associate, registrant or employee of a licensee may wear a uniform, use a title, insignia, badge or identification card or make any statement that would lead a person to believe that he is connected in any way with the federal government, a state government or any political subdivision of a state government unless he is authorized by proper authorities to do so. No badge of any type may be used, shown or offered as identification in conjunction with the identification card or independently.

B. A licensee or registrant, on claiming to be a private investigator, shall display the identification card issued by the department to such persons as may have reasonable cause to verify the validity of the license or registration. The licensee or registrant shall display the identification card for a reasonable period of time for the requester to verify the information on the identification card.

§ 32-2452 Authority required to operate under fictitious name

A licensee may conduct an investigative business under a name other than the licensee's by first obtaining written authorization from the director. The director shall not authorize the use of an agency name that is so similar to that of a public officer or agency or of that used by another licensee that the public may be confused or misled by the use.

§ 32-2453 Business address; posting of license

A. Each licensed agency shall have at least one physical location from which the normal business of the agency is conducted. The address of this location shall be on file with the department at all times as required by section 32-2423, subsection A and section 32-2425, subsection D.

B. The agency license certificate issued by the department shall be posted in a conspicuous place in the principal office of the private investigation agency. The branch office certificate shall be conspicuously posted in the branch office of the agency for which it is issued.

§ 32-2454 Advertising

All display or broadcast media advertising by a licensee soliciting business shall contain the licensee's name and license number as they appear in the records of the department. The licensee shall not use any advertising that is false, deceptive or misleading.

§ 32-2455 Divulging investigative information; false reports prohibited

A. Except as otherwise provided by this chapter or other law, no licensee, associate, registrant or employee of a licensee may divulge or release to anyone other than his client or employer the contents of an investigative file acquired in the course of licensed investigative activity. However, the department shall have access to investigative files if the client for whom the information was acquired, or his lawful representative, alleges a violation of this chapter by the licensee or a registrant, the licensed agency or any employee or if the prior written consent of the client to divulge or release the information has been obtained.

B. No licensee, associate, registrant or employee of a licensee may wilfully make a false statement or report to a client, employer or authorized representative of the department concerning information acquired in the course of activities regulated by this chapter.

C. The licensee shall submit investigative reports to a client at such times and in such manner as agreed on between the licensee and the client. On demand by the client, the licensee shall divulge to the client the results of an investigation if payment has been tendered for the charges levied.

§ 32-2456 Authority to investigate complaint; filing; response; retention of records

A. The department may investigate any licensee, registrant, associate, employee or person if that licensee, registrant, associate, employee or person is advertising as providing or is engaged in performing services that require licensure or registration under this chapter.

B. The department shall investigate if a licensee or registrant is engaged in activities that do not comply with or are prohibited by this chapter.

C. The department shall enforce this chapter without regard to the place or location in which a violation may have occurred.

D. On the complaint of any person or on its own initiative, the department may investigate any suspected violation of this chapter or the business and business methods of any licensee, registrant or employee of a licensee or applicant for licensure or registration under this chapter.

E. Complaints filed against any licensee, associate, registrant or employee of a licensee shall be in writing on such forms as the department prescribes and shall be filed with the department.

F. In any investigation undertaken by the department, each licensee, associate, registrant, applicant, agency or employee, on request of the department, shall provide records and shall truthfully respond to questions concerning activities regulated under this chapter. These records shall be maintained for five years at the principal place of business of the licensee, or at another location for a person whose license has been terminated, cancelled or revoked. On request by the department during normal business hours or at another time acceptable to the parties, the records shall be made available immediately to the department unless the department determines that an extension may be granted. The licensee shall provide copies of any records requested by the department.

§ 32-2457 Grounds for disciplinary action; emergency summary suspension; judicial review

A. The following constitute grounds for which disciplinary action specified in subsection B of this section may be taken against a licensee or registrant or, if the licensee is other than an individual, against the licensee's qualifying party or any of its associates, directors or managers:

1. Fraud or wilful misrepresentation in applying for an original license or registration or the renewal of an existing license or registration.

2. Using any letterhead, advertisement or other printed matter in any manner or representing that the licensee, associate, registrant or employee of the licensee is an instrumentality of the federal government, a state or any political subdivision of a state.

3. Using a name that is different from that under which the licensee, associate, registrant or employee of the licensee is currently licensed for any advertisement, solicitation or contract to secure business unless the name is an authorized fictitious name.

4. Impersonating, permitting or aiding and abetting an employee to impersonate a law enforcement officer or employee of the United States, any state or a political subdivision of a state.

5. Knowingly violating, or advising, encouraging or assisting the violation of, any statute, court order, warrant or injunction in the course of a business regulated under this chapter.

6. Falsifying fingerprints, photographs or other documents while operating under this chapter.

7. Conviction of a felony.

8. Conviction of any act involving a weapon pursuant to section 13-3102.

9. Conviction of any act of personal violence or force against any person or conviction of threatening to commit any act of personal violence or force against any person.

10. Soliciting business for an attorney in return for compensation.

11. Conviction of any act constituting dishonesty or fraud.

12. Being on parole, on community supervision, on work furlough, on home arrest, on release on any other basis or named in an outstanding arrest warrant.

13. Serving a term of probation pursuant to a conviction for any act of personal violence or domestic violence as defined in section 13-3601 or an offense that has the same elements as a domestic violence offense listed in section 13-3601, subsection A.

14. Committing or knowingly permitting any employee to commit any violation of this chapter or rules adopted pursuant to this chapter.

15. Wilfully failing or refusing to render to a client services or a report as agreed between the parties and for which compensation has been paid or tendered in accordance with the agreement of the parties.

16. The unauthorized release of information acquired on behalf of a client by a licensee, associate or registrant as a result of activities regulated under this chapter.

17. Failing or refusing to cooperate with or refusing access to an authorized representative of the department engaged in an official investigation pursuant to this chapter.

18. Employing or contracting with any unregistered or improperly registered person or unlicensed or improperly licensed person or agency to conduct activities regulated under this chapter if the licensure or registration status was known or could have been ascertained by reasonable inquiry.

19. Permitting, authorizing, aiding or in any way assisting a registered employee to conduct services as described in this chapter on an independent contractor basis and not under the authority of the licensed agency.

20. Failing to maintain in full force and effect workers' compensation insurance, if applicable.

21. Conducting private investigation services regulated by this chapter on an expired, revoked or suspended license or registration.

22. Accepting employment, contracting or in any way engaging in employment that has an adverse impact on investigations being conducted on behalf of clients.

23. Advertising in a false, deceptive or misleading manner.

24. Failing to display on request the identification card issued by the department as required under section 32-2451, subsection B.

25. Committing any act of unprofessional conduct.

26. Being arrested for any offense that is listed in this chapter and that would disqualify the licensee, registrant or qualifying party or any of its associates, directors or managers from obtaining a license or registration.

27. Failing to maintain all qualifications as prescribed by sections 32-2422 and 32-2441, as applicable.

B. On completion of an investigation, the director:

1. May dismiss the case.

2. May take emergency action.

3. May issue a letter of concern, if applicable.

4. May forward the findings to the board for review and possible disciplinary action.

5. Shall place all records, evidence, findings and conclusions and any other information pertinent to the investigation in the public records section of the file maintained at the department.

6. May suspend the license or registration of a person who is arrested for an offense that is listed in this chapter and that would disqualify the person from obtaining a license or registration.

C. A letter of concern is a public document and may be used in future disciplinary actions against a licensee.

D. If the department finds, based on its investigation, that the public health, safety or welfare requires emergency action, the director may order a summary suspension of a license or registration pending proceedings for revocation or other action. If the director issues this order, the department shall serve the licensee or registrant with a written notice of complaint and formal hearing, setting forth the charges made against the licensee or registrant and the licensee's or registrant's right to a formal hearing before the board pursuant to title 41, chapter 6, article 10.

E. If the department finds, based on its investigation, that a violation of subsection A of this section occurred, a hearing by the board may be scheduled pursuant to title 41, chapter 6, article 10. The department shall send notice of the hearing by certified mail, return receipt requested, to the licensee's or registrant's last known address in the department's records.

F. Based on information the board receives during a hearing pursuant to title 41, chapter 6, article 10, it may recommend to the director that the director:

1. Dismiss the complaint if the board believes it is without merit.

2. Fix a period and terms of probation best adapted to protect the public health and safety and to rehabilitate or educate the licensee or registrant.

3. Suspend the license or registration for a period of not more than twelve months.

4. Revoke the license or registration.

G. On a finding by the board and review and concurrence by the director that a licensee or registrant committed a violation of subsection A of this section, the probation, suspension or revocation applies to all licenses or registrations held by a licensee or registrant under this chapter and chapter 26 of this title.

H. Except as provided in section 41-1092.08, subsection H, a person may appeal a final administrative decision made pursuant to this section to the superior court pursuant to title 12, chapter 7, article 6.

§ 32-2458 Violation; classification

Except as provided in section 32-2411, a licensee, associate, registrant or employee who violates any provision of this chapter is guilty of a class 1 misdemeanor.

§ 32-2459 Grounds for refusal to issue agency license; associate and employee registration and identification; judicial review; good cause exceptions

A. Except as provided in subsection F of this section, the department may deny an agency license or the renewal of an agency license if the applicant:

1. Committed any act that, if committed by a licensee, would be grounds for the probation of a licensee or the suspension or revocation of a license under this chapter.

2. Does not meet the requirements prescribed in section 32-2422.

3. While not licensed under this chapter, committed, or aided and abetted the commission of, any act for which a license is required by this chapter or has acted or attempted to act as a private investigator service or private investigator.

4. Knowingly made a false statement in the application.

5. Has been denied an agency license under this chapter.

6. Has been an associate of an agency that has had a license revoked.

7. Failed to provide adequate verification of required investigative experience.

B. The department may deny the issuance of an identification card to an applicant for an associate or employee registration if the applicant:

1. Fails to meet the qualifications under section 32-2441.

2. Has committed any act that would be grounds for suspension or revocation of registration pursuant to this chapter.

3. Has knowingly made any false statement on the application.

C. The denial of the issuance of an identification card or license under this article shall be in writing and shall describe the basis for the denial. A hearing to contest a denial shall be held in accordance with title 41, chapter 6, article 10.

D. Except as provided in section 41-1092.08, subsection H, final decisions of the director are subject to judicial review pursuant to title 12, chapter 7, article 6.

E. An applicant may petition a denial to the board for a good cause exception.

F. If the board granted a licensee or a registrant a good cause exception pursuant to section 32-2412, the department may not deny the licensee's or the registrant's renewal application based on factors already reviewed by the board when granting the good cause exception.

§ 32-2460 Authority to employ unlicensed persons; duty to maintain records

A. Except as provided in this chapter, a licensee may employ as many unlicensed or unregistered persons as may be necessary to assist the licensee in business and the licensee is at all times legally responsible for the good conduct in the business of each person employed. This section does not authorize any unlicensed or unregistered person to perform any service of a type for which a license or registration is required under this chapter unless the person performs the service as a properly registered employee of a licensee.

B. Every licensed agency shall keep an accurate and current record of pertinent information on all employees that is available to the department on request.

§ 32-2461 Identification card; form

The department shall issue a standard identification card to each holder of a license or registration certificate. The department shall determine the size and design of the identification card, and the card shall contain the following information:

1. Name of employee.

2. Photograph of employee.

3. Physical description of employee.

4. Employer's registration certificate number.

5. Expiration date.

6. Any other information that the department determines to be necessary.

§ 32-2462 Notice of arrest

Within forty-eight hours after being arrested, a private investigator or a qualifying party shall notify the employer agency of the arrest. Within twenty-four hours after receiving notice of the arrest, the employer agency shall notify the department of the arrest.

Chapter 25 Physician Assistants

Article 1 General Provisions

§ 32-2501 Definitions

In this chapter, unless the context otherwise requires:

1. "Active license" means a regular license issued pursuant to this chapter.

2. "Adequate records" means legible medical records containing, at a minimum, sufficient information to identify the patient, support the diagnosis, justify the treatment, accurately document the results, indicate advice and cautionary warnings provided to the patient and provide sufficient information for another practitioner to assume continuity of the patient's care at any point in the course of treatment.

3. "Advisory letter" means a nondisciplinary letter to notify a physician assistant that either:

(a) While there is insufficient evidence to support disciplinary action, the board believes that continuation of the activities that led to the investigation may result in further board action against the licensee.

(b) The violation is a minor or technical violation that is not of sufficient merit to warrant disciplinary action.

(c) While the licensee has demonstrated substantial compliance through rehabilitation or remediation that has mitigated the need for disciplinary action, the board believes that repetition of the activities that led to the investigation may result in further board action against the licensee.

4. "Approved program" means a physician assistant educational program accredited by the accreditation review commission on education for physician assistants, or one of its predecessor agencies, the committee on allied health education and accreditation or the commission on the accreditation of allied health educational programs.

5. "Board" means the Arizona regulatory board of physician assistants.

6. "Collaborating physician or entity" means a physician, physician group practice, physician private practice or licensed health care institution that employs or collaborates with a physician assistant who has at least eight thousand hours of clinical practice as certified by the board pursuant to section 32-2536 and does not require a supervision agreement and that designates one or more physicians by name or position who is responsible for the oversight of the physician assistant.

7. "Completed application" means an application for which the applicant has supplied all required fees, information and correspondence requested by the board on forms and in a manner acceptable to the board.

8. "Immediate family" means the spouse, natural or adopted children, father, mother, brothers and sisters of the physician assistant and the natural or adopted children, father, mother, brothers and sisters of the physician assistant's spouse.

9. "Letter of reprimand" means a disciplinary letter that is issued by the board and that informs the physician assistant that the physician assistant's conduct violates state or federal law and may require the board to monitor the physician assistant.

10. "Limit" means a nondisciplinary action that is taken by the board and that alters a physician assistant's practice or medical activities if there is evidence that the physician assistant is or may be mentally or physically unable to safely engage in health care tasks.

11. "Medically incompetent" means that a physician assistant lacks sufficient medical knowledge or skills, or both, in performing delegated health care tasks to a degree likely to endanger the health or safety of patients.

12. "Minor surgery":

(a) Means those invasive procedures that may be performed by a physician assistant, that are consistent with the training and experience of the physician assistant, that are normally taught in courses of training approved by the board, that have been approved by the board as falling within the scope of practice of a physician assistant and that are consistent with the practice setting requirements of the physician assistant.

(b) Does not include a surgical abortion.

13. "Physician" means a physician who is licensed pursuant to chapter 13 or 17 of this title.

14. "Physician assistant" means a person who is licensed pursuant to this chapter.

15. "Regular license" means a valid and existing license that is issued pursuant to section 32-2521 to perform health care tasks.

16. "Restrict" means a disciplinary action that is taken by the board and that alters a physician assistant's practice or medical activities if there is evidence that the physician assistant is or may be medically incompetent or guilty of unprofessional conduct.

17. "Supervising physician" means a physician who holds a current unrestricted license, who supervises a physician assistant who has less than eight thousand hours of clinical practice and who assumes legal responsibility for health care tasks performed by the physician assistant.

18. "Supervision" means a physician's opportunity or ability to provide or exercise direction and control over the services of a physician assistant. Supervision does not require a physician's constant physical presence if the supervising physician is or can be easily in contact with the physician assistant by telecommunication.

19. "Supervision agreement" means a written or electronic signed agreement that both:

(a) Describes the scope of practice for a physician assistant who has less than eight thousand hours of clinical practice.

(b) Is between the physician assistant and a physician or the physician assistant's employer that employs or has on medical staff at least one physician who may provide oversight, as applicable, and who holds a current unrestricted license. For the purposes of this subdivision, "employer" means a physician, physician group practice, physician private practice or licensed health care institution.

20. "Unprofessional conduct" includes the following acts by a physician assistant that occur in this state or elsewhere:

(a) Violating any federal or state law or rule that applies to the performance of health care tasks as a physician assistant. Conviction in any court of competent jurisdiction is conclusive evidence of a violation.

(b) Claiming to be a physician or knowingly allowing another person to represent that person as a physician.

(c) Performing health care tasks that do not meet the supervision or collaboration requirements, as applicable, pursuant to section 32-2531.

(d) Exhibiting a pattern of using or being under the influence of alcohol or drugs or a similar substance while performing health care tasks or to the extent that judgment may be impaired and the ability to perform health care tasks detrimentally affected.

(e) Signing a blank, undated or predated prescription form.

(f) Committing gross malpractice, repeated malpractice or any malpractice resulting in the death of a patient.

(g) Representing that a manifestly incurable disease or infirmity can be permanently cured or that a disease, ailment or infirmity can be cured by a secret method, procedure, treatment, medicine or device, if this is not true.

(h) Refusing to divulge to the board on demand the means, method, procedure, modality of treatment or medicine used in treating a disease, injury, ailment or infirmity.

(i) Prescribing or dispensing controlled substances or prescription-only drugs for which the physician assistant is not approved or in excess of the amount authorized pursuant to this chapter.

(j) Committing any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.

(k) Violating a formal order, probation or stipulation issued by the board.

(l) Failing to clearly disclose the person's identity as a physician assistant in the course of the physician assistant's employment.

(m) Failing to use and affix the initials "P.A." or "P.A.-C." after the physician assistant's name or signature on charts, prescriptions or professional correspondence.

(n) Procuring or attempting to procure a physician assistant license by fraud, misrepresentation or knowingly taking advantage of the mistake of another.

(o) Having professional connection with or lending the physician assistant's name to an illegal practitioner of any of the healing arts.

(p) Failing or refusing to maintain adequate records for a patient.

(q) Using controlled substances that have not been prescribed by a physician, physician assistant, dentist or nurse practitioner for use during a prescribed course of treatment.

(r) Prescribing or dispensing controlled substances to members of the physician assistant's immediate family.

(s) Prescribing, dispensing or administering any controlled substance or prescription-only drug for other than accepted therapeutic purposes.

(t) Dispensing a schedule II controlled substance that is an opioid, except as provided in section 32-2532.

(u) Knowingly making any written or oral false or fraudulent statement in connection with the performance of health care tasks or when applying for privileges or renewing an application for privileges at a health care institution.

(v) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

(w) Having a certification or license refused, revoked, suspended, limited or restricted by any other licensing jurisdiction for the inability to safely and skillfully perform health care tasks or for unprofessional conduct as defined by that jurisdiction that directly or indirectly corresponds to any act of unprofessional conduct as prescribed by this paragraph.

(x) Having sanctions including restriction, suspension or removal from practice imposed by an agency of the federal government.

(y) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate a provision of this chapter.

(z) Using the term "doctor" or the abbreviation "Dr." on a name tag or in a way that leads the public to believe that the physician assistant is licensed to practice as an allopathic or osteopathic physician in this state.

(aa) Failing to furnish legally requested information to the board or its investigator in a timely manner.

(bb) Failing to allow properly authorized board personnel to examine on demand documents, reports and records of any kind relating to the physician assistant's performance of health care tasks.

(cc) Knowingly making a false or misleading statement on a form required by the board or in written correspondence or attachments furnished to the board.

(dd) Failing to submit to a body fluid examination and other examinations known to detect the presence of alcohol or other drugs pursuant to an agreement with the board or an order of the board.

(ee) Violating a formal order, probation agreement or stipulation issued or entered into by the board or its executive director.

(ff) Except as otherwise required by law, intentionally betraying a professional secret or intentionally violating a privileged communication.

(gg) Allowing the use of the licensee's name in any way to enhance or allow the continuance of the activities of, or maintaining a professional connection with, an illegal practitioner of medicine or the performance of health care tasks by a person who is not licensed pursuant to this chapter.

(hh) Committing false, fraudulent, deceptive or misleading advertising by a physician assistant or the physician assistant's staff or representative.

(ii) Knowingly failing to disclose to a patient on a form that is prescribed by the board and that is dated and signed by the patient or guardian acknowledging that the patient or guardian has read and understands that the licensee has a direct financial interest in a separate diagnostic or treatment agency or in nonroutine goods or services that the patient is being prescribed and whether the prescribed treatment, goods or services are available on a competitive basis. This subdivision does not apply to a referral by one physician assistant to another physician assistant or to a doctor of medicine or a doctor of osteopathic medicine within a group working together.

(jj) With the exception of heavy metal poisoning, using chelation therapy in the treatment of arteriosclerosis or as any other form of therapy without adequate informed patient consent or without conforming to generally accepted experimental criteria, including protocols, detailed records, periodic analysis of results and periodic review by a medical peer review committee, or without approval by the United States food and drug administration or its successor agency.

(kk) Prescribing, dispensing or administering anabolic or androgenic steroids for other than therapeutic purposes.

(ll) Prescribing, dispensing or furnishing a prescription medication or a prescription-only device as defined in section 32-1901 to a person unless the licensee first conducts a physical examination of that person or has previously established a professional relationship with the person. This subdivision does not apply to:

(i) A physician assistant who provides temporary patient care on behalf of the patient's regular treating licensed health care professional.

(ii) Emergency medical situations as defined in section 41-1831.

(iii) Prescriptions written to prepare a patient for a medical examination.

(iv) Prescriptions written or antimicrobials dispensed to a contact as defined in section 36-661 who is believed to have had significant exposure risk as defined in section 36-661 with another person who has been diagnosed with a communicable disease as defined in section 36-661 by the prescribing or dispensing physician assistant.

(mm) Engaging in sexual conduct with a current patient or with a former patient within six months after the last medical consultation unless the patient was the licensee's spouse at the time of the contact or, immediately preceding the professional relationship, was in a dating or engagement relationship with the licensee. For the purposes of this subdivision, "sexual conduct" includes:

(i) Engaging in or soliciting sexual relationships, whether consensual or nonconsensual.

(ii) Making sexual advances, requesting sexual favors or engaging in other verbal conduct or physical contact of a sexual nature with a patient.

(iii) Intentionally viewing a completely or partially disrobed patient in the course of treatment if the viewing is not related to patient diagnosis or treatment under current practice standards.

(nn) Performing health care tasks under a false or assumed name in this state.

§ 32-2502 Arizona regulatory board of physician assistants; membership; appointment; terms; immunity

A. The Arizona regulatory board of physician assistants is established consisting of the following members:

1. Five physician assistants who hold a current regular license pursuant to this chapter. The governor may appoint these members from a list of qualified candidates submitted by the Arizona state association of physician assistants. The governor may seek additional input and nominations before the governor makes the physician assistant appointments.

2. Two public members who are appointed by the governor.

3. Two physicians who are actively engaged in the practice of medicine and who are licensed pursuant to chapter 17 of this title, one of whom supervises or collaborates with a physician assistant at the time of appointment, and who are appointed by the governor.

4. Two physicians who are actively engaged in the practice of medicine and who are licensed pursuant to chapter 13 of this title, one of whom supervises or collaborates with a physician assistant at the time of appointment, and who are appointed by the governor.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. The term of office of members of the board is four years to begin and end on July 1.

D. Each board member is eligible for appointment to not more than two full terms, except that the term of office for a member appointed to fill a vacancy that is not caused by the expiration of a full term is for the unexpired portion of that term and the governor may reappoint that member to not more than two additional full terms. Each board member may continue to hold office until the appointment and qualification of that member's successor. The governor may remove a member after notice and a hearing on a finding of continued neglect of duty, incompetence or unprofessional or dishonorable conduct. That member's term ends when the finding is made.

E. A board member's term automatically ends:

1. On written resignation submitted to the board chairperson or to the governor.

2. If the member is absent from this state for more than six months during a one-year period.

3. If the member fails to attend three consecutive regular board meetings.

4. Five years after retirement from active practice.

F. Board members are immune from civil liability for all good faith actions they take pursuant to this chapter.

§ 32-2503 Organization; meetings; payment for service

A. The board shall annually elect a chairperson and vice chairperson from among its members.

B. The board shall hold a regular meeting at least quarterly on a date and at a time and place it designates. The board shall hold special meetings, including meetings using communications equipment that allows all members participating in the meeting to hear each other, as the chairperson determines are necessary to carry out the functions of the board. The board shall hold a special meeting on any day that the chairperson determines is necessary to carry out the functions of the board. The vice chairperson may call regular meetings and special meetings if the chairperson is not available.

C. Members of the board are eligible to receive up to $200 for each day of service in the business of the board and for all expenses necessarily and properly incurred in attending board meetings.

§ 32-2504 Powers and duties; delegation of authority; rules; subcommittees; immunity

A. The board shall:

1. As its primary duty, protect the public from unlawful, incompetent, unqualified, impaired or unprofessional physician assistants.

2. License and regulate physician assistants pursuant to this chapter.

3. Order and evaluate physical, psychological, psychiatric and competency testing of licensees and applicants the board determines is necessary to enforce this chapter.

4. Review the credentials and the abilities of applicants for licensure whose professional records or physical or mental capabilities may not meet the requirements of this chapter.

5. Initiate investigations and determine on its own motion whether a licensee has engaged in unprofessional conduct or is or may be incompetent or mentally or physically unable to safely perform health care tasks.

6. Establish fees and penalties pursuant to section 32-2526.

7. Develop and recommend standards governing the profession.

8. Engage in the full exchange of information with the licensing and disciplinary boards and professional associations of other states and jurisdictions of the United States and foreign countries and a statewide association for physician assistants.

9. Direct the preparation and circulation of educational material the board determines is helpful and proper for its licensees.

10. Discipline and rehabilitate physician assistants pursuant to this chapter.

11. Certify physician assistants for thirty-day prescription privileges for schedule II, schedule III, schedule IV and schedule V controlled substances that are opioids or benzodiazepine and ninety-day prescription privileges for schedule II, schedule III, schedule IV and schedule V controlled substances that are not opioids or benzodiazepine if the physician assistant either:

(a) Within the preceding three years of application, completed forty-five hours in pharmacology or clinical management of drug therapy or at the time of application is certified by a national commission on the certification of physician assistants or its successor.

(b) Met any other requirement established by board rule.

B. The board may delegate to the executive director the board's authority pursuant to this section or section 32-2551. The board shall adopt a substantive policy statement pursuant to section 41-1091 for each specific licensing and regulatory authority the board delegates to the executive director.

C. The board may make and adopt rules necessary or proper for the administration of this chapter.

D. The chairperson may establish subcommittees consisting of board members and define their duties as the chairperson deems necessary to carry out the functions of the board.

E. Board employees, including the executive director, temporary personnel and professional medical investigators, are immune from civil liability for good faith actions they take to enforce this chapter.

F. In performing its duties pursuant to subsection A of this section, the board may receive and review staff reports on complaints, malpractice cases and all investigations.

G. The chairperson and vice chairperson of the Arizona regulatory board of physician assistants are members of the committee on executive director selection and retention established by section 32-1403, subsection G, which is responsible for the appointment of the executive director pursuant to section 32-1405.

§ 32-2505 Personnel; consultants; compensation

A. The executive director employed by the Arizona medical board is the executive director of the Arizona regulatory board of physician assistants. The staff of the Arizona medical board shall carry out the administrative responsibilities of the Arizona regulatory board of physician assistants.

B. The executive director is eligible to receive compensation set by the board within the range determined under section 38-611.

C. The executive director or the executive director's designee shall:

1. Employ, evaluate, dismiss, discipline and direct professional, clerical, technical, investigative and administrative personnel necessary to carry on the work of the board.

2. Set compensation for board employees within the range determined under section 38-611.

3. As directed by the board, prepare and submit recommendations for amendments to the physician assistant practice act for consideration by the legislature.

4. Appoint and employ medical consultants and agents necessary to conduct investigations, gather information and perform those duties the executive director determines are necessary and appropriate to enforce this chapter.

5. Issue licenses, registrations and permits to applicants who meet the requirements of this chapter.

6. Manage the board's offices.

7. Prepare minutes, records, reports, registries, directories, books and newsletters and record all board transactions and orders.

8. Collect all monies due and payable to the board.

9. Pay all bills for authorized expenditures of the board and its staff.

10. Prepare an annual budget.

11. Submit a copy of the budget each year to the governor, the speaker of the house of representatives and the president of the senate.

12. Initiate an investigation if evidence appears to demonstrate that a physician assistant may be engaged in unprofessional conduct or may be medically incompetent or mentally or physically unable to safely practice as a physician assistant.

13. Issue subpoenas if necessary to compel the attendance and testimony of witnesses and the production of books, records, documents and other evidence.

14. Provide assistance to the attorney general in preparing and sign and execute disciplinary orders, rehabilitative orders and notices of hearings as directed by the board.

15. Enter into contracts to procure goods and services pursuant to title 41, chapter 23 that are necessary to carry out board policies and directives.

16. Execute board directives.

17. Represent the board in matters with the federal government, other states or jurisdictions of the United States, this state, political subdivisions of this state, the news media and the public.

18. Enter into stipulated agreements on behalf of the board with persons under the jurisdiction of the board for the treatment, rehabilitation or monitoring of chemical substance abuse or misuse.

19. Review all complaints filed pursuant to section 32-2551. If delegated by the board, the executive director may also dismiss a complaint if the complaint is without merit.

20. If delegated by the board, directly refer cases to a formal hearing.

21. If delegated by the board, close cases resolved through mediation.

22. If delegated by the board, issue advisory letters.

23. If delegated by the board, enter into a consent agreement if there is evidence of danger to the public health and safety.

24. If delegated by the board, grant uncontested requests for inactive status and cancellation of a license pursuant to this chapter.

25. If delegated by the board, refer cases to the board for a formal interview.

26. Perform all other administrative, licensing or regulatory duties required by the board.

D. Medical consultants and agents appointed pursuant to subsection C, paragraph 4 of this section are eligible to receive compensation determined by the executive director in an amount not to exceed two hundred dollars for each day of service.

E. A person who is aggrieved by an action taken by the executive director may request the board to review that action by filing with the board a written request within thirty days after that person is notified of the executive director's action by personal delivery, or if mailed to that person's last known residence or place of business, within thirty-five days after the date on the notification. At the next regular board meeting, the board shall review the executive director's action. On review, the board shall approve, modify or reject the executive director's action.

§ 32-2506 Arizona medical board fund

(L24, Ch. 222, sec. 35. Eff. until 7/1/28)

A. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies collected pursuant to this chapter in the state general fund and deposit the remaining eighty-five percent in the Arizona medical board fund.

B. Monies deposited in the fund pursuant to this section are subject to section 35-143.01.

§ 32-2506 (Version 2) Arizona medical board fund

(L24, Ch. 222, sec. 36. Eff. 7/1/28)

A. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies collected pursuant to this chapter in the state general fund and deposit the remaining ninety percent in the Arizona medical board fund.

B. Monies deposited in the fund pursuant to this section are subject to section 35-143.01.

§ 32-2507 Licensee profiles; civil penalty

A. The board shall make available to the public a profile of each licensee. The board shall make this information available through an internet website and, if requested, in writing. The profile shall contain the following information:

1. A description of any conviction of a felony or a misdemeanor involving moral turpitude within the last five years. For the purposes of this paragraph, a licensee is deemed to be convicted of a crime if the licensee pled guilty or was found guilty by a court of competent jurisdiction.

2. A description of any felony charges or misdemeanor charges involving moral turpitude within the last five years to which the licensee pled no contest.

3. The number of pending complaints and final board disciplinary and nondisciplinary actions within the last five years. Information concerning pending complaints shall contain the following statement:

Pending complaints represent unproven allegations. On investigation, many complaints are found to be without merit and are dismissed.

4. All medical malpractice court judgments and all medical malpractice awards or settlements in which a payment is made to a complaining party within the last five years. Information concerning malpractice actions shall contain the following statement:

The settlement of a medical malpractice action may occur for a variety of reasons that do not necessarily reflect negatively on the professional competence or conduct of the physician assistant. A payment in settlement of a medical malpractice action does not create a presumption that medical malpractice occurred.

5. The name and location of the licensee's training and the date of graduation.

6. The licensee's primary practice location.

B. Each licensee shall submit the information required pursuant to subsection A of this section as directed by the board. An applicant for licensure shall submit this information at the time of application. The applicant and licensee shall submit the information on a form prescribed by the board. A licensee shall submit immediately any changes in information required pursuant to subsection A, paragraphs 1, 2 and 4 of this section. The board shall update immediately its internet website to reflect changes in information relating to subsection A, paragraphs 1, 2, 3 and 4 of this section. The board shall update the internet website information after receipt of the renewal application pursuant to section 32-2523.

C. The board shall provide each licensee with a copy of the licensee's profile and give the licensee reasonable time to correct the profile before it is available to the public.

D. It is an act of unprofessional conduct for a licensee to provide erroneous information pursuant to this section. In addition to other disciplinary action, the board may impose a civil penalty of not more than one thousand dollars for each erroneous statement.

§ 32-2508 Preceptorship awareness campaign; definitions

A. The board shall develop a preceptorship awareness campaign that educates medical professionals who are licensed pursuant to this chapter on how to become and the benefits of being a medical preceptor for students.

B. For the purposes of this section:

1. "Medical preceptor" means a medical professional who is licensed pursuant to this chapter and who maintains an active practice in this state.

2. "Preceptorship":

(a) Means a mentoring experience in which a medical preceptor provides a program of personalized instruction, training and supervision to a student to enable the student to obtain a medical professional degree to become licensed pursuant to this chapter.

(b) Does not include mentoring for medical services that are prescribed in section 36-2301.01, subsection C, paragraph 1.

3. "Student" means an individual who is matriculating at the graduate level at an accredited institution of higher education in this state and who is seeking a medical professional degree to become licensed pursuant to this chapter.

Article 2 Licensure

§ 32-2521 Qualifications

A. An applicant for licensure shall:

1. Have graduated from a physician assistants educational program approved by the board.

2. Pass a certifying examination approved by the board.

3. Be physically and mentally able to safely perform health care tasks as a physician assistant.

4. Have a professional record that indicates that the applicant has not committed any act or engaged in any conduct that constitutes grounds for disciplinary action against a licensee pursuant to this chapter. This paragraph does not prevent the board from considering the application of an applicant who was the subject of disciplinary action in another jurisdiction if the applicant's act or conduct was subsequently corrected, monitored and resolved to the satisfaction of that jurisdiction's regulatory board.

5. Not have had a license to practice revoked by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter.

6. Not be currently under investigation, suspension or restriction by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter. If the applicant is under investigation by a regulatory board in another jurisdiction, the board shall suspend the application process and may not issue or deny a license to the applicant until the investigation is resolved.

7. Not have surrendered, relinquished or given up a license in lieu of disciplinary action by a regulatory board in another jurisdiction in the United States for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter. This paragraph does not prevent the board from considering the application of an applicant who surrendered, relinquished or gave up a license in lieu of disciplinary action by a regulatory board in another jurisdiction if that regulatory board subsequently reinstated the applicant's license.

8. Have submitted verification of all hospital affiliations and employment for the five years preceding application. Each hospital must verify the applicant's affiliation or employment on the hospital's official letterhead or the electronic equivalent.

B. The board shall require an applicant to have all credentials submitted from the primary source where the document originated, either electronically or by hard copy, except that the board may accept primary-source verified credentials from a credentials verification service approved by the board.

C. The board may make investigations it deems necessary to advise itself with respect to the qualifications of the applicant, including physical examinations, mental evaluations, written competency examinations or any combination of these examinations and evaluations.

D. If the board finds that the applicant committed an act or engaged in conduct that would constitute grounds for disciplinary action in this state, before issuing a license the board must determine to its satisfaction that the act or conduct has been corrected, monitored and resolved. If the act or conduct has not been resolved, before issuing a license the board must determine to its satisfaction that mitigating circumstances exist that prevent its resolution.

E. If another jurisdiction has taken disciplinary action against an applicant, before issuing a license the board must determine to its satisfaction that the cause for the action was corrected and the matter was resolved. If the other jurisdiction has not resolved the matter, before issuing a license the board must determine to its satisfaction that mitigating circumstances exist that prevent its resolution.

F. The board may delegate to the executive director the authority to deny licenses to applicants who do not meet the requirements of this section.

§ 32-2522 Applications; interview; withdrawal

A. Each applicant shall file a verified completed application in the form required and supplied by the board that is accompanied by the prescribed application fee.

B. The application shall be designed to require the submission of evidence, credentials and other proof necessary to satisfy the board that the applicant qualifies for licensure.

C. The application shall contain the oath of the applicant that:

1. All information contained in the application and evidence submitted with it are true and correct.

2. The credentials submitted were not procured by fraud or misrepresentation or any mistake of which the applicant is aware.

3. The applicant is the lawful holder of the credentials.

D. All applications submitted to the board and any attendant evidence, credentials or other proof submitted with an application are the property of the board and part of the permanent record of the board and shall not be returned to an applicant.

E. After the board has received a completed application the board either shall grant or deny a license to the applicant. If an applicant has submitted an incomplete application, the board shall promptly notify an applicant, in writing, of the deficiencies, if any, in the application that prevent it from being a completed application.

F. The board or its representatives may interview an applicant to determine whether the application is sufficient.

G. Applications are considered withdrawn on any of the following conditions:

1. Written request of the applicant.

2. Failure of the applicant to appear for an interview with the board unless good cause is shown.

3. Failure to submit a completed application within one year from the date of the mailing by the board of a statement to the applicant of the deficiencies in the application pursuant to subsection E of this section.

H. On request of an applicant who disagrees with the statement of deficiency, the board shall grant a hearing before the board at its next regular meeting if there is time at that meeting to hear the matter. The board shall not delay this hearing beyond one regularly scheduled meeting. At any hearing granted pursuant to this subsection, the burden of proof is on the applicant to demonstrate that the alleged deficiencies do not exist.

I. The board may deny a license to an applicant who does not meet the requirements of this article.

J. If an applicant does not meet the requirements of section 32-2521, subsection A, paragraph 3, the board may issue a license subject to any of the following probationary conditions:

1. Restrict the licensee's practice.

2. Require the licensee to continue medical or psychiatric treatment.

3. Require the licensee to participate in a specified rehabilitation program.

4. Require the licensee to abstain from alcohol and other drugs.

K. If the board offers a probationary license to an applicant pursuant to subsection J of this section, it shall notify the applicant in writing of the following:

1. The applicant's specific deficiencies.

2. The probationary period.

3. The applicant's right to reject the terms of probation.

4. If the applicant rejects the terms of probation, the applicant's right to a hearing on the board's denial of the application.

§ 32-2523 Licensure; renewal; continuing education; audit; penalty fee; expiration

A. Except as provided in section 32-4301, each holder of a regular license shall renew the license every other year on or before the licensee's birthday by paying the prescribed renewal fee and supplying the board with information it deems necessary, including proof of having completed, before the renewal date, forty hours of category I continuing medical education approved by the American academy of physician assistants, the American medical association, the American osteopathic association or any other accrediting organization acceptable to the board. The board shall verify continuing medical education compliance and shall randomly audit at least ten percent of physician assistants who are renewing their license within the calendar year and who do not hold a current national certification from a national certification organization for physician assistants that is approved by the board.

B. Except as provided in section 32-4301, a holder of a regular license who fails to renew the license within thirty days after the licensee's birthday shall pay a penalty fee as set forth in rule for late renewal.

C. Except as provided in section 32-4301, if a holder of a regular license fails to renew the license within ninety days after the licensee's birthday, the license automatically expires. It is unlawful for a person to perform health care tasks of a physician assistant after the license expires.

D. A person whose license expires may reapply for licensure pursuant to this chapter.

E. If a licensee does not meet the requirements of subsection A of this section because of that person's illness, religious missionary activity or residence in a foreign country or any other extenuating circumstance, the board may grant an extension of the deadline if it receives a written request to do so from the licensee that details the reasons for this request.

F. The continuing medical education requirement in subsection A of this section is deemed satisfied if, at the time of renewal, the licensee holds a certification in good standing from a certifying body approved by the board.

§ 32-2524 Exemption from licensure

This chapter does not require licensure of:

1. A student who is enrolled in a physician assistant education program approved by the board.

2. A physician assistant who is an employee of the United States government and who works on land or in facilities owned or operated by the United States government.

3. A physician assistant who is a member of the armed forces of the United States and who is on official orders or performing official duties as outlined in the appropriate regulation of that branch of military service.

§ 32-2525 Cancellation of license

A. A person who holds an active regular license as a physician assistant, who is not presently under investigation by the board as the result of a complaint or information received by it, and against whom the board has not commenced any disciplinary proceedings may request and the board shall grant cancellation of the license.

B. The board may accept the request to cancel the active regular license of a physician assistant who has been charged with a violation of this chapter or rules adopted pursuant to this chapter if the physician assistant admits the charges and stipulates this admission for the record.

§ 32-2526 Fees

A. By a vote at its annual fall meeting, the board shall establish nonrefundable fees and penalties that do not exceed the following:

1. Processing an application for an active license, four hundred dollars.

2. Issuing an active license, four hundred dollars.

3. Annual renewal of a regular license, four hundred dollars.

4. Penalty fee for late renewal of a regular license, three hundred fifty dollars.

5. Issuance of a duplicate license, twenty-five dollars.

6. Verification of a license, ten dollars.

7. Copying records, documents, letters, minutes, applications and files, one dollar for the first three pages and twenty-five cents for each additional page.

8. The sale of computerized tapes or diskettes that do not require programming, one hundred dollars.

9. Services not required to be provided by this chapter, but that the board deems appropriate to carry out the intent and purpose of this chapter, a fee of not to exceed the actual cost of providing the services. Notwithstanding section 32-2506, the board shall deposit, pursuant to sections 35-146 and 35-147, all of the monies collected under this paragraph in the Arizona medical board fund established by section 32-1406.

B. Notwithstanding subsection A of this section, on written request the board may return the license renewal fee for good cause shown.

C. The board may collect from a drawer of a dishonored check, draft, order or note an amount allowed pursuant to section 44-6852.

§ 32-2527 Change of address; penalty

A. A person holding an active license as a physician assistant in this state shall inform the board in writing within thirty days of that person's current residence address, office address and telephone number and of each change in residence and office address or telephone number that occurs. A residential address is not available to the public unless it is the only address of record.

B. The board may assess its costs incurred in locating a physician assistant who fails to comply with subsection A of this section within thirty days after the date of change. The board may also assess a penalty of not to exceed one hundred dollars against the physician assistant. Notwithstanding section 32-2506, monies collected pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the Arizona medical board fund established by section 32-1406.

§ 32-2528 Inactive license; application; prohibited activities

A. A person who holds a regular license pursuant to this chapter may request an inactive license from the board if both of the following are true:

1. The licensee is not under investigation by the board.

2. The board has not begun disciplinary proceedings against the licensee.

B. The board may grant an inactive license and shall waive the annual renewal fee and requirements for continuing medical education if the person certifies total retirement from the performance of health care tasks in this state, any jurisdiction of the United States and any foreign country and is current on all fees required by this chapter.

C. An inactive licensee shall not perform health care tasks.

D. The board may convert an inactive license to a regular license on payment of the annual renewal fee and presentation of evidence to the board that the holder possesses the medical knowledge and the physical and mental ability to safely engage in the performance of health care tasks. The board may require any combination of physical examination, psychiatric or psychological evaluation, oral competency examination or a board qualified written examination or interview it believes necessary to assist it in determining the ability of a physician assistant who holds an inactive license to return to regular licensure.

Article 3 Scope of Practice and Approval of Employment

§ 32-2531 Physician assistant scope of practice; health care tasks; supervision agreements; supervising physician duties; civil penalty

A. Except as prohibited in subsection E of this section, a physician assistant may provide any legal medical service for which the physician assistant has been prepared by education, training and experience and that the physician assistant is competent to perform, including:

1. Obtaining comprehensive health histories and performing physical examinations.

2. Evaluating and diagnosing patients and managing and providing medical treatment and therapeutic interventions.

3. Ordering, performing and interpreting diagnostic studies and therapeutic procedures.

4. Educating patients on health promotion and disease prevention and providing counseling and education to meet patient needs.

5. Providing consultation on request.

6. Writing medical orders.

7. Obtaining informed consent.

8. Assisting in surgery.

9. Delegating and assigning therapeutic and diagnostic measures to and supervising licensed or unlicensed personnel.

10. Making appropriate referrals.

11. Ordering, prescribing, dispensing and administering drugs and medical devices.

12. Prescribing prescription-only medications.

13. Prescribing schedule IV or schedule V controlled substances as defined in the controlled substances act (P.L. 91-513; 84 Stat. 1242; 21 United States Code section 802).

14. Prescribing schedule II and schedule III controlled substances as defined in the controlled substances act.

15. Performing minor surgery.

16. Performing nonsurgical health care tasks that are normally taught in courses of training approved by the board and that are consistent with the physician assistant's education, training and experience.

17. Certifying the health or disability of a patient as required by any local, state or federal program.

18. Ordering home health services.

B. Pursuant to the requirements of this chapter and the standard of care, a physician assistant who has at least eight thousand hours of clinical practice certified by the board pursuant to section 32-2536 is not required to practice pursuant to a supervision agreement but shall continue to collaborate with, consult with or refer to the appropriate health care professional as indicated by the patient's condition and by the physician assistant's education, experience and competencies. The level of collaboration required by this subsection is determined by the policies of the practice setting at which the physician assistant is employed, including a physician employer, physician group practice or health care institution. Collaboration, consultation or a referral pursuant to this subsection may occur through electronic means and does not require the physical presence of the appropriate health care professional at the time or place the physician assistant provides medical services. This subsection does not prohibit a physician assistant who has at least eight thousand hours of clinical practice certified by the board pursuant to section 32-2536 from practicing pursuant to a supervision agreement.

C. A physician assistant who has less than eight thousand hours of clinical practice certified by the board shall work in accordance with a supervision agreement that describes the physician assistant's scope of practice. A physician assistant may not perform health care tasks until the physician assistant has completed and signed a supervision agreement. Under a supervision agreement, supervision may occur through electronic means and does not require the physical presence of the supervising physician at the time or place the physician assistant provides medical services. The supervision agreement must be kept on file at the main location of the physician assistant's practice and, on request, be made available to the board or the board's representative. On receipt of board certification of the physician assistant's completion of at least eight thousand hours of clinical practice, a physician assistant is no longer subject to the requirements of this subsection. The board may count practice hours earned in another jurisdiction toward the hours of clinical practice required by this subsection.

D. A physician assistant who does not practice pursuant to a supervision agreement is legally responsible for the health care services performed by the physician assistant.

E. A physician assistant shall not perform surgical abortions as defined in section 36-2151.

F. A physician assistant may pronounce death and may authenticate, by the physician assistant's signature, certification, stamp, verification, affidavit or endorsement, any form that may be authenticated by a physician's signature, certification, stamp, verification, affidavit or endorsement.

G. The board by rule may prescribe a civil penalty for a violation of this article. The penalty shall not exceed $50 for each violation. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies it receives from this penalty in the state general fund. A physician assistant and the supervising physician or collaborating physician or entity may contest the imposition of this penalty pursuant to board rule. The imposition of a civil penalty is public information, and the board may use this information in any future disciplinary actions.

§ 32-2532 Prescribing, administering and dispensing drugs; limits and requirements; notice

A. Except as provided in subsection G of this section, a physician assistant shall not prescribe, dispense or administer:

1. A schedule II or schedule III controlled substance as defined in the controlled substances act (P.L. 91-513; 84 Stat. 1242; 21 United States Code section 802) without board approval and United States drug enforcement administration registration. If the physician assistant has less than eight thousand clinical practice hours, the supervision agreement shall specify the physician assistant's ability to prescribe, dispense or administer a schedule II or schedule III controlled substance.

2. A schedule IV or schedule V controlled substance as defined in the controlled substances act without United States drug enforcement administration registration. If the physician assistant has less than eight thousand clinical practice hours, the supervision agreement shall specify the physician assistant's ability to prescribe, dispense or administer a schedule IV or schedule V controlled substance.

3. Prescription medication intended to perform or induce an abortion.

B. If the physician assistant has less than eight thousand clinical practice hours, the supervision agreement shall specify the physician assistant's ability to prescribe, dispense or administer prescription-only medication.

C. All prescription orders issued by a physician assistant shall contain the name, address and telephone number of the physician assistant. A physician assistant shall issue prescription orders for controlled substances under the physician assistant's own United States drug enforcement administration registration number.

D. If the physician assistant is certified for prescription privileges pursuant to section 32-2504, subsection A, initial prescriptions by the physician assistant for schedule II controlled substances that are opioids are subject to the limits prescribed in sections 32-3248 and 32-3248.01. For each schedule IV or schedule V controlled substance, the physician assistant may not prescribe the controlled substance more than five times in a six-month period for each patient.

E. A prescription by a physician assistant for a schedule III controlled substance that is an opioid or benzodiazepine is not refillable without the written consent of a physician.

F. A physician assistant may not dispense, prescribe or refill prescription-only drugs for a period exceeding one year for each patient.

G. Except in an emergency, a physician assistant may dispense schedule II or schedule III controlled substances for a period of use of not to exceed seventy-two hours with board approval or any other controlled substance for a period of use of not to exceed ninety days and may administer controlled substances without board approval if it is medically indicated in an emergency dealing with potential loss of life or limb or major acute traumatic pain. Notwithstanding the authority granted in this subsection, a physician assistant may not dispense a schedule II controlled substance that is an opioid, except for an implantable device or an opioid that is for medication-assisted treatment for substance use disorders or as provided in section 32-3248.03.

H. Except for samples provided by manufacturers, all drugs dispensed by a physician assistant shall be labeled to show the name of the physician assistant.

I. A physician assistant shall not obtain a drug from any source other than a physician or a pharmacist. A physician assistant may receive manufacturers' samples.

J. If a physician assistant is approved by the board to prescribe, administer or dispense schedule II and schedule III controlled substances, the physician assistant shall maintain an up-to-date and complete log of all schedule II and schedule III controlled substances the physician assistant administers or dispenses. The board may not grant a physician assistant the authority to dispense schedule II controlled substances that are opioids, except for implantable devices or opioids that are for medication-assisted treatment for substance use disorders.

K. The Arizona regulatory board of physician assistants shall advise the Arizona state board of pharmacy and the United States drug enforcement administration of all physician assistants who are authorized to prescribe or dispense drugs and any modification of their authority.

L. The Arizona state board of pharmacy shall notify all pharmacies at least quarterly of physician assistants who are authorized to prescribe or dispense drugs.

§ 32-2533 Supervising physicians; responsibilities

A. A supervising physician is responsible for all aspects of the performance of a physician assistant who has less than eight thousand hours of clinical practice, whether or not the supervising physician actually pays the physician assistant a salary. The supervising physician is responsible for supervising the physician assistant and ensuring that the health care tasks performed by a physician assistant are within the physician assistant's scope of training and experience and have been properly delegated by the supervising physician.

B. Each physician-physician assistant team must ensure that:

1. The physician assistant's scope of practice is identified.

2. The delegation of medical tasks is appropriate to the physician assistant's level of competence.

3. The relationship of, and access to, the supervising physician is defined.

4. A process for evaluating the physician assistant's performance is established.

C. A supervising physician shall not supervise more than six physician assistants who work at the same time.

D. A supervising physician shall develop a system for recording and reviewing all instances in which the physician assistant prescribes schedule II or schedule III controlled substances.

§ 32-2534 Billing; direct payment

A physician assistant may bill and receive direct payment for the professional services provided by the physician assistant.

§ 32-2535 Emergency medical care

A. Notwithstanding the requirements of this article, in response to a natural disaster, accident or other emergency, a physician assistant who is licensed pursuant to this chapter, licensed or certified by another regulatory jurisdiction in the United States or credentialed as a physician assistant by a federal employer may provide medical care at any location, and the physician assistant is not required to have completed eight thousand clinical practice hours pursuant to section 32-2531.

B. A physician who supervises a physician assistant who is providing medical care pursuant to this section is not required to comply with the requirements of this article relating to supervising physicians.

§ 32-2536 Physician assistants; documentation; certification; rules

A. A physician assistant who is licensed pursuant to this chapter, who is in good standing, who has graduated from an accredited physician assistant program in the United States and who has at least eight thousand clinical practice hours within the previous five years in this state or another jurisdiction shall provide the board with documentation of having completed at least eight thousand hours of clinical practice in order to meet the requirements of section 32-2531, subsection B. The board shall develop:

1. A policy that sets forth the process of attestation or documentation required as proof of completion of at least eight thousand clinical practice hours and issuance of certification of completion of the eight thousand clinical practice hours.

2. An alternative comparable standard for certification of eight thousand hours of clinical practice for physician assistants who have been actively practicing for more than five years.

B. The board shall adopt rules establishing additional certification standards or requirements for physician assistants who previously completed eight thousand clinical practice hours certified by the board and who are seeking employment with a collaborating physician or entity for a position that is not substantially similar to the practice setting or specialty in which the physician assistant was previously certified. The certification standards or requirements shall ensure appropriate training and oversight, including a supervision agreement if warranted, for the physician assistant's new practice setting or specialty.

Article 4 Regulation

§ 32-2551 Grounds for disciplinary action; duty to report; immunity; proceedings; board action; notice; civil penalty

A. The board on its own motion may investigate any evidence that appears to show that a physician assistant is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to carry out approved health care tasks. Any physician, physician assistant or health care institution as defined in section 36-401 shall, and any other person may, report to the board any information the physician, physician assistant, health care institution or other person has that appears to show that a physician assistant is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to carry out approved health care tasks. If the board begins an investigation pursuant to this section, it may require the physician assistant to promptly provide the name and address of the supervising physician or collaborating physician or entity, as applicable. The board or the executive director shall notify the physician assistant of the content of the reported information in writing within one hundred twenty days after the board's receipt of the information. Any physician, physician assistant, health care institution or other person that reports or provides information to the board in good faith is not subject to an action for civil damages as a result of reporting or providing information, and, if requested, the name of the reporter shall not be disclosed unless the information is essential to proceedings conducted pursuant to this section.

B. The board or, if delegated by the board, the executive director may require a mental, physical or medical competency examination or any combination of those examinations or may make investigations, including investigational interviews, between representatives of the board and the physician assistant and the supervising physician, the collaborating physician or a physician representative of the collaborating entity, as applicable, as the board deems necessary to fully inform itself with respect to any information reported pursuant to subsection A of this section. These examinations may include biological fluid testing and other examinations known to detect the presence of alcohol or other drugs. The board or, if delegated by the board, the executive director may require the physician assistant, at the physician assistant's expense, to undergo assessment by a board-approved rehabilitative, retraining or assessment program.

C. If the board finds, based on the information it receives under subsections A and B of this section, that the public safety imperatively requires emergency action and incorporates a finding to that effect in its order, the board may restrict a license or order a summary suspension of a license pending proceedings for revocation or other action. If the board acts pursuant to this subsection, the physician assistant shall also be served with a written notice of complaint and formal hearing, setting forth the charges, and is entitled to a formal hearing before the board or an administrative law judge on the charges within sixty days pursuant to title 41, chapter 6, article 10.

D. If, after completing its investigation, the board finds that the information provided pursuant to subsection A of this section is not of sufficient seriousness to merit disciplinary action against the physician assistant's license, the board may take the following actions:

1. Dismiss if, in the opinion of the board, the complaint is without merit.

2. File an advisory letter. The licensee may file a written response with the board within thirty days after receiving the advisory letter.

3. Require the licensee to complete designated continuing medical education courses.

E. If the board finds that it can take rehabilitative or disciplinary action without the presence of the physician assistant at a formal interview it may enter into a consent agreement with the physician assistant to limit or restrict the physician assistant's practice or to rehabilitate the physician assistant, protect the public and ensure the physician assistant's ability to safely practice. The board may also require the physician assistant to successfully complete a board-approved rehabilitative, retraining or assessment program at the physician assistant's own expense.

F. The board shall not disclose the name of the person who provided the information regarding a licensee's drug or alcohol impairment or the name of the person who files a complaint if that person requests anonymity.

G. If, after completing its investigation, the board believes that the information is or may be true and that the information may be of sufficient seriousness to merit direct action against the physician assistant's license, it may request a formal interview with the physician assistant and the supervising physician, the collaborating physician or a physician representative of the collaborating entity, as applicable. If the physician assistant refuses the invitation for a formal interview, the board may issue a formal complaint and order that a hearing be held pursuant to title 41, chapter 6, article 10. The board shall notify the physician assistant in writing of the time, date and place of the formal interview at least twenty days before the interview. The notice shall include the right to be represented by counsel and shall fully set forth the conduct or matters to be discussed.

H. After the formal interview, the board may take the following actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. File an advisory letter. The licensee may file a written response with the board within thirty days after receiving the advisory letter.

3. Enter into a stipulation with the physician assistant to restrict or limit the physician assistant's practice or medical activities or to rehabilitate, retrain or assess the physician assistant, in order to protect the public and ensure the physician assistant's ability to safely perform health care tasks. The board may also require the physician assistant to successfully complete a board-approved rehabilitative, retraining or assessment program at the physician assistant's own expense as prescribed in subsection E of this section.

4. File a letter of reprimand.

5. Issue a decree of censure. A decree of censure is a disciplinary action against the physician assistant's license and may include a requirement for restitution of fees to a patient resulting from violations of this chapter or rules adopted under this chapter.

6. Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the physician assistant. Failure to comply with any terms of probation is cause for initiating formal proceedings pursuant to title 41, chapter 6, article 10. Probation may include:

(a) Restrictions on the health care tasks the physician assistant may perform.

(b) Temporary suspension for not more than twelve months.

(c) Restitution of patient fees.

(d) Education or rehabilitation at the licensee's own expense.

7. Require the licensee to complete designated continuing medical education courses.

I. If the board finds that the information provided pursuant to subsection A of this section warrants suspension or revocation of a physician assistant's license, the board shall immediately initiate formal proceedings to suspend or revoke the license as provided in title 41, chapter 6, article 10. The notice of complaint and hearing is fully effective by mailing a true copy of the notice of complaint and hearing by certified mail addressed to the physician assistant's last known address of record in the board's files. The notice of complaint and hearing is complete at the time of its deposit in the mail.

J. A physician assistant who after a formal hearing pursuant to title 41, chapter 6, article 10 is found to be medically incompetent, guilty of unprofessional conduct or mentally or physically unable to safely carry out the physician assistant's approved health care tasks, or any combination of these, is subject to censure, probation, suspension or revocation, or any combination of these, for a period of time or permanently and under conditions the board deems appropriate to protect the public health and safety.

K. In a formal interview pursuant to subsection G of this section or in a hearing pursuant to subsection I of this section, the board in addition to any other action may impose a civil penalty in the amount of at least $300 but not more than $10,000 for each violation of this chapter or a rule adopted under this chapter.

L. An advisory letter is a public document and may be used in future disciplinary actions against a physician assistant.

M. The board may charge the costs of a formal hearing to the licensee if it finds the licensee in violation of this chapter.

N. If the board acts to modify a physician assistant's prescription writing privileges, the Arizona regulatory board of physician assistants shall immediately notify the Arizona state board of pharmacy and the United States drug enforcement administration of this modification.

O. If during the course of an investigation the board determines that a criminal violation may have occurred involving the physician assistant's performance of health care tasks, the board shall provide evidence of the violation to the appropriate criminal justice agency.

P. The board may accept the surrender of an active license from a person who admits in writing to any of the following:

1. Being unable to safely engage in the practice of medicine.

2. Having committed an act of unprofessional conduct.

3. Having violated this chapter or a board rule.

Q. In determining the appropriate disciplinary action under this section, the board shall consider all previous nondisciplinary and disciplinary actions against a licensee.

§ 32-2552 Right to examine and copy evidence; subpoena authority; right to counsel; confidentiality of records

A. In connection with an investigation conducted by the board on its own motion or as the result of information received pursuant to section 32-2551, subsection A, the board or its duly authorized agent or employee at all reasonable times shall have access to, for the purpose of examination, and the right to copy any documents, reports, records or other physical evidence of any person being investigated or the reports, the records and any other documents maintained by and in the possession of any hospital, clinic, physician's office, physician assistant's office, laboratory, pharmacy, health care institution as defined in section 36-401 or other public or private agency if the documents, reports, records or evidence relate to a physician assistant's medical competence, unprofessional conduct or mental or physical ability to safely engage in the physician assistant's approved health care tasks.

B. For the purpose of all investigations and proceedings conducted by the board:

1. On its own motion or on application of a person involved in an investigation, the board may issue subpoenas compelling the attendance and testimony of witnesses or demanding the production of documents or any other physical evidence for examination or copying if the evidence relates to the medical incompetence, unprofessional conduct or mental or physical ability of a physician assistant to safely perform health care tasks. Within five days after service of a subpoena requiring the production of evidence in the person's possession or under the person's control, the person may petition the board to revoke, limit or modify the subpoena. The board shall do so if it believes that the evidence required does not relate to violations of this chapter, is not relevant to the subject matter of the hearing or investigation or does not describe with sufficient particularity the physical evidence requested.

2. A person appearing before the board may be represented by counsel.

3. A board member or agent designated by the board may administer oaths or affirmations, examine witnesses and receive evidence.

4. On application by the board or by the person subpoenaed, the superior court has jurisdiction to issue an order to do either of the following:

(a) Require a person to appear before the board or its authorized agent to produce evidence relating to the investigation.

(b) Revoke, limit or modify a subpoena if the court determines that the evidence does not relate to a violation of this chapter, is not relevant to the hearing or investigation or does not describe with sufficient particularity the physical evidence requested.

C. The following items are not available to the public:

1. Patient records, including clinical records, medical reports and laboratory statements and reports.

2. Files, films, reports or oral statements relating to diagnostic findings or treatment of patients.

3. Any information from which a patient or the patient's family might be identified.

4. Information received and records kept by the board in its investigations.

D. This section and any other provision of law that makes communications between a physician or a physician assistant and the physician assistant's patient a privileged communication does not apply to investigations or proceedings conducted pursuant to this chapter. The board and its employees, agents and representatives shall keep in confidence the names of any patients whose records are reviewed during the course of investigations and proceedings pursuant to this chapter.

E. Hospital records, medical staff records, medical staff review committee records, testimony concerning those records and proceedings related to the creation of those records are not available to the public, shall be kept confidential by the board and are subject to the same provisions of law concerning discovery and use in legal actions as are the original records in the possession and control of hospitals, medical staffs and medical staff review committees.

§ 32-2553 Judicial review

Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-2554 Violation; classification

A. A person who does any of the following is guilty of a class 6 felony:

1. Performs a health care task if that person is not licensed pursuant to this chapter or is not exempt from licensure pursuant to this chapter.

2. Secures a license to perform health care tasks by fraud or deceit.

3. Impersonates a member of the board.

B. A person who is not licensed pursuant to this chapter shall not use the designation "P.A.", "P.A.-C." or "Physician assistant" or use any other words, initials or symbols in a way that leads the public to believe that the person is licensed pursuant to this chapter. A person who violates this subsection is guilty of a class 2 misdemeanor.

§ 32-2555 Injunctions

A. The superior court may issue an injunction to enjoin:

1. A person who is not licensed pursuant to this chapter or who is not exempt from licensure pursuant to this chapter from performing health care tasks.

2. A physician assistant from performing health care tasks if the court determines that the licensee will or may cause irreparable damage to the public health and safety before the board has an opportunity to act pursuant to section 32-2551.

3. An act proscribed in section 32-2554, subsection B.

B. In a petition for an injunction pursuant to subsection A, paragraph 1 of this section, it is sufficient for the petitioner to charge that the respondent on a day certain in a named county engaged in the performance of health care tasks without being licensed or exempt from licensure pursuant to this chapter. It is not necessary for the petitioner to show damage or injury.

C. In a petition for an injunction pursuant to subsection A, paragraph 2 of this section, the petitioner shall specify the facts regarding the licensee's threat to the public health and safety.

D. The board shall file the petition in the superior court in Maricopa county or in the county where the respondent resides or is found.

§ 32-2556 Human immunodeficiency virus; disclosure; immunity; definition

A. It is not an act of unprofessional conduct for a licensee to report to the department of health services the name of a patient's spouse, sex partner or person with whom the patient has shared hypodermic needles or syringes if the licensee knows that the patient tests positive for the human immunodeficiency virus and that the patient has not or will not notify these people and refer them to testing. Before reporting this information to the department of health services the licensee shall ask the patient to release this information voluntarily.

B. It is not an act of unprofessional conduct for a licensee who knows or who has reason to believe that a significant exposure has occurred between a patient who tests positive for the human immunodeficiency virus and a health care worker or a public safety employee to inform the worker or employee of the exposure. Before disclosing this information the licensee shall ask the patient to disclose this information voluntarily. If the patient does not agree to do this the licensee may disclose the information in a manner that does not identify the patient.

C. This section does not impose a duty to disclose information. A licensee is not subject to civil or criminal liability for either disclosing or not disclosing information.

D. If a licensee decides to make a disclosure pursuant to this section the licensee may request the department of health services to make the disclosure on the licensee's behalf.

E. For the purposes of this section, "significant exposure" means contact of a person's ruptured or broken skin or mucous membranes with another person's blood or body fluid, other than tears, saliva or perspiration, of a magnitude that the centers for disease control of the United States public health service have epidemiologically demonstrated can result in the transmission of the human immunodeficiency virus.

§ 32-2557 Disciplinary action; reciprocity

A. The board shall initiate an investigation pursuant to section 32-2551 if a professional regulatory board in another jurisdiction in the United States has taken disciplinary action against a licensee for an act that occurred in that jurisdiction that constitutes unprofessional conduct pursuant to this chapter.

B. The board shall order the summary suspension of a license pending proceedings for revocation or other action if a professional regulatory board in another jurisdiction in the United States has taken the same action because of its belief that the public health, safety or welfare imperatively required emergency action.

§ 32-2558 Reinstatement of revoked or surrendered license

A. On written application, the board may issue a new license to a physician assistant whose license was previously revoked by the board or surrendered if the applicant demonstrates to the board's satisfaction that the applicant is completely rehabilitated with respect to the conduct that was the basis for the revocation or surrender. In making its decision, the board shall determine:

1. That the applicant has not engaged in any conduct during the revocation or surrender period that would have constituted a basis for revocation or surrender pursuant to section 32-2551.

2. If a criminal conviction was a basis of the revocation or surrender, that the applicant's civil rights have been fully restored pursuant to statute or any other applicable recognized judicial or gubernatorial order.

3. That the applicant has made restitution to any aggrieved person as ordered by a court of competent jurisdiction.

4. That the applicant demonstrates any other standard of rehabilitation the board determines is appropriate.

B. Except as provided in subsection C of this section, a person shall not submit an application for reinstatement less than two years after the date of revocation or surrender.

C. The board shall vacate its previous order to revoke or accept the surrender of a license if that revocation or surrender was based on a conviction of a felony or an offense involving moral turpitude and that conviction has been reversed on appeal. The physician assistant may submit an application for reinstatement as soon as the court enters the reversal.

D. An applicant for reinstatement shall comply with all initial licensing requirements prescribed by this chapter.

Chapter 26 Security Guards

Article 1 General Provisions

§ 32-2601 Definitions

In this chapter, unless the context otherwise requires:

1. "Advertising" means submitting bids, contracting or making known by any public notice, publication or solicitation of business, directly or indirectly, that services regulated under this chapter are available for consideration.

2. "Agency license" means a certificate that is authenticated by the department and that attests that a qualifying party is authorized to conduct the business of private security guard service in this state.

3. "Applicant" means a person who has submitted a completed application and all required application and fingerprint processing fees.

4. "Armed security guard" means a registered security guard who wears, carries, possesses or has access to a firearm at any time during the course of employment.

5. "Associate" means a person who is a partner or corporate officer in a security guard agency.

6. "Board" means the private investigator and security guard hearing board established by section 32-2404.

7. "Conviction" means an adjudication of guilt by a federal, state or local court resulting from trial or plea, including a plea of no contest, regardless of whether or not the adjudication of guilt was set aside or vacated.

8. "Department" means the department of public safety.

9. "Director" means the director of the department of public safety.

10. "Emergency action" means a summary suspension of a license pending revocation, suspension or probation in order to protect the public health, safety or welfare.

11. "Employee" means an individual who works for an employer, is listed on the employer's payroll records and is under the employer's direction and control.

12. "Employer" means a person who is licensed pursuant to this chapter, who employs an individual for wages or salary, who lists the individual on the employer's payroll records and who withholds all legally required deductions and contributions.

13. "Firearms safety training instructor" means a person who provides classroom and range instruction to applicants for armed security guard certification.

14. "Identification card" means a card issued by the department to a qualified applicant for an agency license, to an associate or to a registrant.

15. "Letter of concern" means an advisory letter to notify a licensee or registrant that while there is insufficient evidence to support probation, suspension or revocation of a license or registration the department believes the licensee or registrant should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the department may result in further disciplinary action against the person's license or registration.

16. "Licensee" means a person to whom an agency license is granted pursuant to article 2 of this chapter.

17. "Private security guard service" means any agency, individual or employer in the business of furnishing to the public for hire, fee or reward dogs, watchmen, patrol services, private security guards or other persons to protect human life or to prevent the theft or the misappropriation or concealment of goods, wares, merchandise, money, bonds, stocks, notes, choses in action or other property, valuable documents, papers and articles of value.

18. "Proprietary company" means a company that employs security guards or armed security guards solely for use of and service to itself and not for others.

19. "Qualifying party" means the individual who meets the qualifications under this chapter for an agency license.

20. "Registrant" means an employee of a licensed agency who is qualified to perform the services of a security guard.

21. "Registration certificate" means a certificate that is authenticated by the department and that attests that an employee of a business holding an agency license has satisfactorily complied with article 3 of this chapter.

22. "Restructuring" means any change in a business' legal status.

23. "Security guard" means any person employed by a private security guard service or proprietary company as a watchman, patrolman, bodyguard, personal protection guard or private security guard or any other person who performs security guard services, but does not include any regularly commissioned police or peace officer or railroad police appointed pursuant to section 40-856.

24. "Security guard training instructor" means a person who provides instruction to applicants for unarmed security guard certification.

25. "Unprofessional conduct" means any of the following:

(a) Engaging or offering to engage by fraud or misrepresentation in activities regulated by this chapter.

(b) Aiding or abetting a person who is not licensed or registered pursuant to this chapter in representing that person as a security guard in this state.

(c) Gross negligence in the practice of a security guard.

(d) Failing or refusing to maintain adequate records on a client containing at least sufficient information to identify the client, the dates of service, the fee for service and the payments for service.

(e) Committing a felony or a misdemeanor involving any crime that is grounds for denial, suspension or revocation of a security guard agency license or employee registration certificate. In all cases, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission.

(f) Making a fraudulent or false statement to the department, the board or the department's investigators, staff or consultants.

§ 32-2602 Administration by director; duty to keep records; rules; criminal history records checks

A. The director of the department of public safety shall administer this chapter.

B. The department shall keep a record of:

1. All applications for licenses or registration under this chapter.

2. Whether a license, registration certificate, renewal license or renewal registration certificate has been issued under each application.

3. If a license or registration certificate is revoked or suspended, the date of filing the order for revocation or suspension.

4. A list of all individuals, qualifying parties, firms, partnerships, associations or corporations that have had licenses or registrations revoked or suspended and a written record of complaints filed against any licensees or registrants.

5. All insurance policies required to be filed under this chapter.

C. The department shall maintain all records kept pursuant to subsection B of this section for at least five years. The records, except the financial statement of licensees, are open to inspection as public records.

D. The department shall adopt and enforce rules that are not in conflict with the laws of this state and that are necessary to enforce this chapter.

E. The director may conduct periodic criminal history records checks pursuant to section 41-1750 for the purpose of updating the licensing and registration status of current license and registration holders.

§ 32-2605 Power of local authorities

This chapter does not prevent any political subdivision of this state from prescribing additional requirements for regulation of security guard agencies, but the political subdivision may not assess an additional fee.

§ 32-2606 Exceptions

This chapter does not apply to:

1. An officer or employee of the federal government, this state or a political subdivision of this state while the officer or employee is performing official duties.

2. An individual who performs security related work at:

(a) A commercial nuclear generating station that is subject to federal regulatory requirements.

(b) A company that is subject to department of defense regulatory requirements.

3. A company that employs security guards solely for use of and service to itself and not for others and that complies with the following requirements:

(a) If the company’s security guards are armed, each guard must complete sixteen hours of firearms training initially and complete an additional eight hours of refresher training each year thereafter.

(b) If the security guard wears a uniform or badge, the uniform or badge must strictly conform to the standards established by the department pursuant to this chapter.

(c) The company must annually submit an affidavit to the department that attests to the company’s compliance with its internal procedures that require a background investigation for each of its security guards.

4. The Arizona rangers organization as identified in section 41-4201, or authorized persons performing official Arizona ranger duties when in the service of a nonprofit organization recognized under section 501(c)(3) of the internal revenue code.

§ 32-2607 Fees; renewal of agency licenses and associate or employee registration certificates

A. The department shall charge and collect reasonable fees as determined by the director to cover the operational and equipment costs of regulating the security guard industry.

B. An agency license granted under this chapter may be renewed after the department receives an application on such a form as the department prescribes, the fees prescribed pursuant to subsection A of this section and proof of required liability insurance and workers' compensation and the agency identifies the certified security guard training instructors and firearms safety training instructors that the applicant uses. A person, firm, company, partnership or corporation may not carry on any business subject to this article during any period that may exist between the date of expiration of an agency license and the renewal of the agency license.

C. A security guard, armed security guard, security guard training instructor or firearms safety training instructor registration certificate granted under this article may be issued after application on such a form as the department prescribes, the payment of fees prescribed pursuant to subsection A of this section and proof of the completion of training as required by this chapter.

D. A security guard, armed security guard, security guard training instructor or firearms safety training instructor registration certificate granted under this article may be renewed after application on such a form as the department prescribes and the payment of renewal fees.

E. A licensee or registrant shall not engage in any activity regulated by this chapter during any period between the date of expiration of the agency license or registration certificate and the renewal of the agency license or registration certificate.

F. The department may renew a suspended agency license or registration certificate as provided in this chapter. While suspended, the renewal of the agency license or registration certificate does not entitle the licensee, security guard, armed security guard, security guard training instructor or firearms safety training instructor to engage in any activity regulated by this chapter or in any other activity or conduct in violation of the order or judgment that suspended the agency license or registration certificate.

G. The department shall not renew a revoked agency license or registration certificate. The department shall not accept an application for an agency license or registration certificate from a person whose agency license or registration certificate has been revoked until at least one year after the date of revocation.

§ 32-2608 License or registration required; violation; classification

A. A person, except a regularly commissioned peace officer, shall not act or attempt to act as, or represent that the person is, a security guard unless the person is registered as a security guard pursuant to this chapter and is acting within the scope of the person's employment for an agency that is licensed pursuant to article 2 of this chapter.

B. A person shall not act or attempt to act as, or represent that the person is, a security guard training instructor or firearms safety training instructor unless the person is registered as a security guard training instructor or firearms safety training instructor pursuant to this chapter and is acting within the scope of the person's employment for an agency that is licensed pursuant to article 2 of this chapter.

C. A person who knowingly violates this section is guilty of a class 1 misdemeanor.

§ 32-2609 Good cause exceptions for misdemeanor and felony offenses

A. If a person shows at a hearing to the board's satisfaction that the person is not awaiting trial on or has not been convicted of committing any of the offenses listed in section 41-1758.03, subsection B, the board may grant a good cause exception for the following:

1. A misdemeanor offense if the person completed all terms of sentencing.

2. A felony offense if ten of more years have passed since the person completed all terms of sentencing.

B. Before granting a good cause exception at a hearing the board shall consider all of the following in accordance with board rule:

1. The extent of the person's criminal record.

2. The length of time that has elapsed since the offense was committed.

3. The nature of the offense.

4. Evidence supporting any applicable mitigating circumstances.

5. Evidence supporting the degree to which the person participated in the offense.

6. Evidence supporting the extent of the person's rehabilitation, including:

(a) Completion of probation, parole or community supervision.

(b) Whether the person paid restitution or other compensation for the offense.

(c) Evidence of positive action to change criminal behavior, such as completion of a drug treatment program or counseling.

(d) Personal references attesting to the person's rehabilitation.

C. If seeking a good cause exception, at least five days before the hearing the applicant shall submit to the department any evidence the applicant will be presenting at the hearing.

§ 32-2610 Reciprocal agreements; recognition

A. The department may enter into a reciprocal agreement with a state that has security guard qualification laws substantially similar to this chapter to allow a security guard registration to be used by the registrant within the jurisdiction of either this state or the other state. The department may enter into the agreement if the issuing authority for the other state meets all of the following conditions:

1. Issues a security guard identification card with an expiration date printed on the card.

2. Is available to verify the registration status for law enforcement purposes within three business days after a request for verification.

3. Has disqualification, suspension and revocation requirements for registrations.

4. Requires that the applicant for a registration submit to a criminal history records check pursuant to section 41-1750 and applicable federal law.

B. The department may recognize security guard registrations from states that have security guard qualification laws substantially similar to this chapter if the issuing authority for the other state meets all of the conditions prescribed in subsection A, paragraphs 1 through 4 of this section.

C. The reciprocal agreement or recognition shall be limited and is intended only to allow security guard agencies that maintain business operations in multiple states to use their security guards to meet temporary demands. For a security guard from another state to work in this state, the department shall set appropriate restrictions that shall include the following provisions:

1. The security guard shall possess a security guard registration in good standing from another state.

2. The security guard shall be employed by a security guard agency licensed in this state that possesses a security guard agency license in both states in good standing.

3. The security guard shall work no more than thirty days in a calendar year in this state.

4. The security guard agency shall provide written notification to the department on a form provided by the department.

5. Security guards who possess only a temporary or provisional registration shall not be permitted to work in this state.

Article 2 Agency Licensing

§ 32-2611 Necessity of an agency license

A person shall not engage in a business regulated by this chapter or act, assume to act as or represent himself to be a licensee unless the person is licensed pursuant to this chapter.

§ 32-2612 Qualifications of applicant for agency license; substantiation of work experience

A. Each applicant, if an individual, or each associate, director or manager, if the applicant is other than an individual, for an agency license to be issued pursuant to this chapter shall:

1. Be at least twenty-one years of age.

2. Be a citizen or a legal resident of the United States who is authorized to seek employment in the United States.

3. Not have been convicted of any felony or currently be under indictment for a felony.

4. Within the five years immediately preceding the application for an agency license, not have been convicted of any misdemeanor act involving:

(a) Personal violence or force against another person or threatening to commit any act of personal violence or force against another person.

(b) Misconduct involving a deadly weapon as provided in section 13-3102.

(c) Dishonesty or fraud.

(d) Arson.

(e) Theft.

(f) Domestic violence.

(g) A violation of title 13, chapter 34 or 34.1 or an offense that has the same elements as an offense listed in title 13, chapter 34 or 34.1.

(h) Sexual misconduct.

5. Not be on parole, on community supervision, on work furlough, on home arrest, on release on any other basis or named in an outstanding arrest warrant.

6. Not be serving a term of probation pursuant to a conviction for any act of personal violence or domestic violence, as defined in section 13-3601, or an offense that has the same elements as an offense listed in section 13-3601.

7. Not be any of the following:

(a) Adjudicated mentally incompetent.

(b) Found to constitute a danger to self or others or to be in persistent or acute disability or grave disability pursuant to section 36-540.

(c) Found incompetent pursuant to rule 11, Arizona rules of criminal procedure.

(d) Found guilty except insane.

8. Not have a disability as defined in section 41-1461, unless that person is a qualified individual as defined in section 41-1461.

9. Not have been convicted of acting or attempting to act as a security guard or a security guard agency without a license if a license was required.

10. Not be a registered sex offender.

B. The qualifying party for an agency license and the resident manager, if a resident manager is required pursuant to section 32-2616, shall have at least three years of full-time experience as a manager, supervisor or administrator of a security guard agency or three years of full-time supervisory experience with any federal, United States military, state, county or municipal law enforcement agency. The qualifying party for an agency license and the resident manager, if a resident manager is required pursuant to section 32-2616, must substantiate managerial work experience claimed as years of qualifying experience and provide the exact details as to the character and nature of the experience on a form prescribed by the department and certified by the employer. On written request, an employer shall submit to the employee a written certification of prior work experience within thirty calendar days. The written certification is subject to independent verification by the department. If an employer goes out of business, the employer shall provide registered employees with a complete and accurate record of their work history. If an applicant is unable to supply written certification from an employer in whole or in part, the applicant may offer written certification from persons other than an employer covering the same subject matter for consideration by the department. The burden of proving the minimum years of experience is on the applicant.

C. The department may deny an agency license if the department determines that the applicant is unfit based on a conviction, citation or encounter with law enforcement for a statutory violation.

§ 32-2613 Application for agency license; financial responsibility; notice and opportunity to supply additional information

A. Every application for an original or renewal agency license to operate as a private security guard service shall set forth verified information to assist the department in determining the applicant's ability to meet the requirements set forth in this chapter and shall include the following:

1. The full name and business address of the applicant.

2. The name under which the applicant intends to do business.

3. A statement as to the general nature of the business in which the applicant intends to engage, including identification of armed security guard training requirements and identification of employees acting as armed security guards.

4. Photographs of the applicant of a number and type prescribed by the department.

5. Fingerprints of the applicant of a quality and number prescribed by the department for the purpose of obtaining state and federal criminal records checks pursuant to section 41-1750 and Public Law 92-544. The department may exchange this fingerprint data with the federal bureau of investigation. The department may conduct periodic criminal history checks to ensure continued qualification under this chapter.

6. A verified statement of the applicant's experience and qualifications.

7. Such other information, evidence, statements or documents as may reasonably be required by the director.

B. If the applicant is other than an individual, each of its partners, resident officers, associates, directors and managers, in addition to its qualifying party, shall comply with the requirements of subsection A of this section. If the applicant is other than an individual, the application shall contain the full name and address of each of its board members and the president, vice president, secretary and treasurer. The person who will manage the business conducted in this state shall comply in full with the requirements of subsection A of this section.

C. An application for an original or a renewal agency license shall be accompanied by:

1. The fee as prescribed pursuant to section 32-2607.

2. A certificate of a liability insurance policy, issued by an insurance company licensed or authorized to do business in this state. The minimum limits of such liability insurance policies shall be established by the department. Any insurer issuing such a policy shall give written notice to the department of any cancellation of such a policy. Such notice shall be given by the insurer to the director at least ten days before the cancellation by certified mail.

3. A certificate of workers' compensation insurance.

4. A completed form describing the agency's training program for employees as described in section 32-2632, subsection A, including training requirements for and identification of armed security guards employed by the agency and the identification of registered firearms safety training instructors and registered security guard training instructors used by the agency. The form shall be as prescribed by the director and require such information as the director deems necessary.

D. If an application is incomplete, the department shall notify the applicant pursuant to section 41-1074. If the department requires additional information to make a decision on licensure, the department shall notify the applicant pursuant to section 41-1075. The department shall send notices under this subsection to the applicant's last known residential address and shall include sufficient information to assist the applicant to complete the application process. The applicant has forty-five calendar days after the date of notification to provide the additional documentation. If the applicant fails to respond within forty-five calendar days, the application and any registration certificates issued are automatically suspended until the department receives the necessary documentation to approve or deny the application.

§ 32-2614 Issuance of agency licenses and identification cards; deadline for completing application

A. The department shall issue an agency license under this article to any applicant who satisfactorily complies with this chapter. Each agency license shall contain the name and address of the licensee and the number of the license and shall be issued for a period of four years.

B. On the issuance of an agency license, an identification card as described in section 32-2633 shall be issued to the licensee if an individual, or if the licensee is other than an individual, to the licensee's qualifying party, associates, resident managers and each of the licensee's resident officers, associates, directors and partners. The identification card is evidence that the licensee is duly licensed pursuant to this chapter. If any person to whom the identification card of an agency licensee, other than an individual, is issued terminates the person's position, office or association with the licensee, the person shall surrender the identification card to the licensee and within five business days the licensee shall mail or deliver the identification card to the director for cancellation. If the person fails or refuses to surrender the identification card to the licensee, the licensee shall notify the director within five business days of the termination of the person's position, office or association with the licensee.

C. On notification by the department to an applicant that the agency license is ready for issuance, the applicant shall complete the application process within ninety calendar days. Failure to complete the process results in the application being canceled, and the applicant forfeits all fees. Subsequent application by the same applicant requires the payment of all application and license fees prescribed pursuant to section 32-2607.

D. A licensee, within thirty calendar days, shall notify the department in writing of any change in the name or address of the business or any change of associates or directors.

§ 32-2616 Qualifying party; responsibilities

A. An applicant for an agency license shall have a qualifying party.

B. For a sole proprietorship, the qualifying party shall be the agency licensee.

C. For a partnership, corporation or limited liability company, the qualifying party shall be the individual who is liable for managing the agency. All other partners or corporate officers shall register as associates pursuant to article 3 of this chapter.

D. If the qualifying party lives outside this state, the qualifying party shall designate a resident manager who is a manager of the agency, who maintains full-time legal residency in this state and who meets the requirements of sections 32-2612 and 32-2613.

E. If required, the qualifying party shall maintain workers' compensation insurance and liability insurance in effect as prescribed by section 32-2613, subsection C.

§ 32-2617 Branch office certificate

A. A licensee may not establish a branch office of a licensed agency unless the department has issued a branch office certificate.

B. A branch office certificate authorizes the qualifying party of an agency licensee to conduct the business of a private security guard service agency in this state at a location other than the principal place of business shown on the agency license.

C. An application for a branch office certificate shall be on such form as the department prescribes.

D. The branch office certificate shall be issued in the name of the licensed agency only.

Article 3 Registration Certificates

§ 32-2621 Necessity of security guard registration

A. No person, except a regularly commissioned peace officer, shall act, attempt to act or represent himself as a security guard unless such person is registered as a guard pursuant to this chapter and acting within the scope of his employment for an agency licensed pursuant to article 2 of this chapter.

B. The provisions of this article shall not apply to individual agency licensees or to qualifying parties, officers, directors, partners or managers of an agency licensee who are licensed pursuant to article 2 of this chapter.

§ 32-2622 Qualifications of applicant for associate, security guard or armed security guard registration certificate

A. An applicant for an associate or a security guard registration certificate issued pursuant to this article shall:

1. Be at least eighteen years of age.

2. Be a citizen or legal resident of the United States who is authorized to seek employment in the United States.

3. Not have been convicted of any felony or currently be under indictment for a felony.

4. Within the five years immediately preceding the application for an associate, security guard or armed security guard registration certificate, not have been convicted of any misdemeanor act involving:

(a) Personal violence or force against another person or threatening to commit any act of personal violence or force against another person.

(b) Misconduct involving a deadly weapon as provided in section 13-3102.

(c) Dishonesty or fraud.

(d) Arson.

(e) Theft.

(f) Domestic violence.

(g) A violation of title 13, chapter 34 or 34.1 or an offense that has the same elements as an offense listed in title 13, chapter 34 or 34.1.

(h) Sexual misconduct.

5. Not be on parole, on community supervision, on work furlough, on home arrest, on release on any other basis or named in an outstanding arrest warrant.

6. Not be serving a term of probation pursuant to a conviction for any act of personal violence or domestic violence, as defined in section 13-3601, or an offense that has the same elements as an offense listed in section 13-3601.

7. Not be either of the following:

(a) Adjudicated mentally incompetent.

(b) Found to constitute a danger to self or others pursuant to section 36-540.

8. Not have a disability as defined in section 41-1461, unless that person is a qualified individual as defined in section 41-1461.

9. Not have been convicted of acting or attempting to act as an associate, security guard or armed security guard without a license if a license was required.

10. Not be a registered sex offender.

B. An applicant for an armed security guard registration certificate issued pursuant to this chapter shall:

1. Meet the requirements of subsection A of this section.

2. Except as provided in section 32-2624, successfully complete all background screening and training requirements.

3. Not be a prohibited possessor as defined in section 13-3101 or as described in 18 United States Code section 922.

4. Not have been discharged from the armed services of the United States under other than honorable conditions.

5. Not have been convicted of any crime involving domestic violence as defined in section 13-3601.

§ 32-2623 Application for employee registration certificate

A. Every application for an employee registration certificate must set forth verified information to assist the department in determining the applicant's ability to meet the requirements set forth in this chapter, as follows:

1. The full name and address of the applicant.

2. Fingerprints of the applicant of a quality and number prescribed by the department for the purpose of obtaining state and federal criminal records checks pursuant to section 41-1750 and Public Law 92-544. The department may exchange this fingerprint data with the federal bureau of investigation. The department may conduct periodic criminal history checks to ensure continued qualification under this chapter.

3. Photographs of the applicant of a number and type prescribed by the department.

4. Such other information, evidence, statements or documents as may reasonably be required by the department.

B. An application for an original or renewal security guard, armed security guard, security guard training instructor or firearms safety training instructor registration certificate shall be accompanied by:

1. The fees prescribed pursuant to section 32-2607.

2. A statement from the applicant's employer requesting and authorizing armed security guard registration status for the applicant.

C. If an application is incomplete, the department shall notify the applicant pursuant to section 41-1074. If the department requires additional information to make a decision on registration, the department shall notify the applicant pursuant to section 41-1075. The department shall send notices issued under this subsection to the applicant's last known residential address and shall include sufficient information to assist the applicant to complete the application process. The applicant has forty-five calendar days after the date of notification to provide the additional documentation. If the applicant fails to respond within forty-five calendar days, the application and any registration certificates issued are automatically suspended until the department receives the necessary documentation to approve or deny the application.

§ 32-2624 Issuance of registration certificates and identification cards

A. Except as otherwise provided in this subsection, after an investigation, the department shall issue a security guard registration certificate, armed security guard registration certificate, security guard training instructor registration certificate or firearms safety training instructor registration certificate under this chapter to any applicant who satisfactorily complies with this chapter. Each security guard, security guard training instructor or firearms safety training instructor registration certificate shall contain the name and address of the registrant and the number of the registration certificate and, except as otherwise provided in this subsection, shall be issued for four years. Before the required background screenings for an applicant are complete, the department may issue a forty-five-day security guard registration certificate or a forty-five-day armed security guard registration certificate to an applicant who is an honorably discharged veteran of the United States military and who has been discharged not more than three years before application. The applicant who receives a forty-five-day security guard registration certificate pursuant to this section may work only for an agency licensee that provides the applicant preassignment training as prescribed in section 32-2632.

B. When a security guard, security guard training instructor or firearms safety training instructor registration certificate is issued, an identification card as described in section 32-2633 shall be issued to the registrant. The identification card is evidence that the person is a duly registered security guard, security guard training instructor or firearms safety training instructor. An employee must obtain an armed security guard registration certificate and identification card for each sponsoring licensee.

C. A security guard employee may not possess or carry a firearm while on official duty unless the employee is currently registered as an armed security guard and is authorized by the person's employer to possess or carry the firearm.

D. A security guard, security guard training instructor or firearms safety training instructor shall notify the director within fifteen calendar days after any change in the name or residential address of the security guard, security guard training instructor or firearms safety training instructor.

E. The department shall not issue a security guard, security guard training instructor or firearms safety training instructor provisional certificate.

§ 32-2625 Qualifications of applicant for security guard training instructor or firearms safety training instructor registration certificate

A. An applicant for a security guard training instructor or firearms safety training instructor registration certificate issued pursuant to this article shall:

1. Be at least eighteen years of age.

2. Be a citizen or legal resident of the United States who is authorized to seek employment in the United States.

3. Not have been convicted of any felony or currently be under indictment for a felony.

4. Within the five years immediately preceding the application for a security guard training instructor or firearms safety training instructor registration certificate, not have been convicted of any misdemeanor act involving:

(a) Personal violence or force against another person or threatening to commit any act of personal violence or force against another person.

(b) Misconduct involving a deadly weapon as prescribed in section 13-3102.

(c) Dishonesty or fraud.

(d) Arson.

(e) Theft.

(f) Domestic violence.

(g) A violation of title 13, chapter 34 or 34.1 or an offense that has the same elements as an offense listed in title 13, chapter 34 or 34.1.

(h) Sexual misconduct.

5. Not be on parole, on community supervision, on work furlough, on home arrest, on release on any other basis or named in an outstanding arrest warrant.

6. Not be serving a term of probation pursuant to a conviction for any act of personal violence or domestic violence, as defined in section 13-3601, or an offense that has the same elements as an offense listed in section 13-3601.

7. Not be any of the following:

(a) Adjudicated mentally incompetent.

(b) Found to constitute a danger to self or others pursuant to section 36-540.

(c) Found incompetent pursuant to rule 11, Arizona rules of criminal procedure.

(d) Found guilty except insane.

8. Not have a disability as defined in section 41-1461, unless that person is a qualified individual with a disability as defined in section 41-1461.

9. Not have been convicted of acting or attempting to act as an associate, a security guard, an armed security guard, a security guard training instructor or a firearms safety training instructor without a license if a license was required.

10. Not be a registered sex offender.

B. In addition to meeting the requirements listed in subsection A of this section, an applicant for a firearms safety training instructor registration certificate that is issued pursuant to this article shall:

1. Successfully complete all background screening and training requirements.

2. Not be a prohibited possessor as defined in section 13-3101 or as described in 18 United States Code section 922.

3. Not have been discharged from the armed services of the United States under other than honorable conditions.

4. Not have been convicted of any crime involving domestic violence as defined in section 13-3601.

Article 4 Regulation

§ 32-2632 Duty of licensee to provide training of security guards; records; firearms training; rules

A. An agency licensee shall provide eight hours of preassignment training for each person who is employed as a security guard before the employee acts in the capacity of a security guard. The training shall be provided by an instructor who is certified by the department. The required training curriculum shall be established by the department.

B. All renewal applicants shall complete eight hours of refresher training within ninety days before submitting a renewal application. An instructor who is certified by the department shall provide the training. The department shall establish the required training curriculum.

C. Every agency licensee shall keep an accurate and current record of pertinent information on all persons employed as security guards, security guard training instructors or firearms safety training instructors, which shall be made available to the department in the event of an alleged violation of this chapter.

D. At least sixteen hours of initial firearms instruction and eight hours of annual continuing firearms instruction in the use of the weapon used by the security guard is required if a firearm is used within the scope of employment. All firearms training and qualifications shall be conducted by a firearms safety training instructor who is certified by the department and shall be completed before the security guard is assigned to any position requiring the carrying of a firearm. The licensee shall provide a monthly report to the department identifying all armed security guards employed by the agency.

E. An agency licensee shall use only security guard training instructors or firearms safety training instructors who are registered pursuant to this chapter.

F. The department shall adopt rules for all of the following:

1. Registration of firearms safety training instructors who provide the firearms training required by subsection D of this section.

2. A firearms training curriculum.

3. Registration of security guard training instructors.

§ 32-2633 Identification cards

Each holder of a license or registration certificate issued under this chapter shall obtain a standard identification card that is issued by the department. The department shall determine the size and design of the identification card and the card shall contain the following information:

1. Name of employee.

2. Date of expiration.

3. Photograph of employee.

4. Physical description of employee.

5. Employee's registration number.

6. If the employee is an armed security guard, information identifying the employee as an armed security guard and the name of the authorizing employer.

7. Such other information as may be determined necessary by the director.

§ 32-2634 Authority; limitations

A person employed as a security guard or armed security guard shall not possess the authority of a regularly commissioned police or peace officer. Any duties performed by a security guard or armed security guard shall be performed in the capacity of a private citizen.

§ 32-2635 Uniform and insignia

A. The particular type of uniform and insignia for a security guard or an armed security guard shall be subject to approval according to rules adopted by the department and shall be such that it will not deceive or confuse the public or be identical with that of any law enforcement officer of the federal government, this state or any political subdivision of this state. Shoulder identification patches shall be worn on all uniform jackets, coats and shirts and shall include the name of the agency licensee. Shoulder identification patches or emblems shall not be less than two inches by three inches in size.

B. No badge or shield shall be worn or carried by a security guard, an armed security guard or an employee or registrant of any patrol service agency or private security guard agency, unless previously approved by the director.

§ 32-2636 Grounds for disciplinary action; emergency summary suspension; judicial review

A. The following constitute grounds for disciplinary action against a licensee or registrant, or if the licensee is other than an individual, against its qualifying party or any of its associates, directors or managers:

1. Using any letterhead, advertisement or other printed matter to represent, or in any other manner representing, that the licensee, registrant or qualifying party or its associate, director or manager is an instrumentality of the federal government or any state or political subdivision of a state.

2. Using a name that is different from that under which the licensee, registrant or qualifying party or its associate, director or manager is currently licensed or registered for any advertisement, solicitation or contract to secure business under this chapter unless the name is an authorized fictitious name.

3. Falsifying fingerprints, photographs or other documents while operating pursuant to this chapter.

4. Impersonating, or permitting or aiding and abetting an employee to impersonate, a law enforcement officer or employee of the United States or any state or political subdivision of a state.

5. Knowingly violating, or advising, encouraging or assisting in the violation of, any statute, court order, warrant or injunction in the course of business as a licensee or registrant under this chapter.

6. Committing or knowingly permitting any employee to commit any violation of this chapter or rules adopted pursuant to this chapter.

7. Committing an act of misconduct involving a weapon pursuant to section 13-3102.

8. Conviction of a felony.

9. Conviction of any act of personal violence or force against any person or conviction of threatening to commit any act of personal violence or force against any person.

10. Fraud or wilful misrepresentation in applying for an original license or registration or the renewal of an existing license or registration.

11. Soliciting business for an attorney in return for compensation.

12. Conviction of any act constituting fraud.

13. Being on parole, on community supervision, on work furlough, on home arrest, on release on any other basis or named in an outstanding arrest warrant.

14. Serving a term of probation pursuant to a conviction for any act of personal violence or domestic violence as defined in section 13-3601 or an offense that has the same elements as a domestic violence offense listed in section 13-3601, subsection A.

15. Wilfully failing or refusing to render client services or a report as agreed between the parties and for which compensation has been paid or tendered pursuant to the agreement of the parties.

16. The unauthorized release of information acquired on behalf of a client by a licensee, associate or registrant as a result of activities regulated under this chapter.

17. Failing or refusing to cooperate with or refusing access to an authorized representative of the department engaged in an official investigation pursuant to this chapter.

18. Employing or contracting with any unregistered or improperly registered person or unlicensed or improperly licensed person or agency to conduct activities regulated under this chapter if the licensure or registration status was known or could have been ascertained by reasonable inquiry.

19. Permitting, authorizing, aiding or in any way assisting a registered employee to conduct services as described in this chapter on an independent contractor basis and not under the authority of the licensed agency.

20. Failing to maintain in full force and effect workers' compensation insurance, if applicable, or liability insurance as prescribed by section 32-2613, subsection C.

21. Conducting security guard services regulated by this chapter on an expired, revoked or suspended license or registration.

22. Accepting employment, contracting or in any way engaging in employment that has an adverse impact on security guard services being conducted on behalf of clients.

23. Advertising in a false, deceptive or misleading manner.

24. Failing to display on request the identification card issued by the department pursuant to section 32-2624.

25. Committing any act of unprofessional conduct.

26. Being arrested for any offense listed in this chapter that would disqualify the licensee, registrant or qualifying party or any of its associates, directors or managers from obtaining a license or registration.

27. Failing to maintain all qualifications as prescribed by sections 32-2612 and 32-2622, as applicable.

B. An officer, director, associate, partner, qualifying party, employee or manager of the holder of an agency license issued pursuant to this chapter who is found in violation of this chapter shall be denied the privilege of operating under such a license. The remaining officers, directors, associates, partners, employees or managers of such licensee who are innocent of such violations may carry on the business.

C. Any person aggrieved by a decision of the director may request a hearing pursuant to title 41, chapter 6, article 10. Except as provided in section 41-1092.08, subsection H, final decisions of the director are subject to judicial review pursuant to title 12, chapter 7, article 6.

D. On completion of an investigation, the director:

1. May dismiss the case.

2. May take emergency action.

3. May issue a letter of concern, if applicable.

4. May forward the findings to the board for review and possible disciplinary action.

5. Shall place all records, evidence, findings and conclusions and any other information pertinent to the investigation in the public records section of the file maintained at the department.

6. May suspend the license or registration of a person who is arrested for an offense that is listed in this chapter and that would disqualify the person from obtaining a license or registration.

E. A letter of concern is a public document and may be used in future disciplinary actions against a licensee or registrant.

F. If the department finds, based on its investigation, that the public health, safety or welfare requires emergency action, the director may order a summary suspension of a license or registration pending proceedings for revocation or other action. If the director issues this order, the department shall serve the licensee or registrant with a written notice of complaint and formal hearing, setting forth the charges made against the licensee or registrant and the licensee's or registrant's right to a formal hearing before the board pursuant to title 41, chapter 6, article 10.

G. If the department finds, based on its investigation, that a violation of subsection A of this section occurred, a hearing by the board may be scheduled pursuant to title 41, chapter 6, article 10. Notice of the hearing shall be sent by certified mail, return receipt requested, to the licensee's or registrant's last known address in the department's files.

H. Based on information the board receives during a hearing pursuant to title 41, chapter 6, article 10, it may recommend to the director that the director:

1. Dismiss the complaint if the board believes it is without merit.

2. Fix a period and terms of probation best adapted to protect the public health and safety and to rehabilitate or educate the licensee or registrant.

3. Suspend the license or registration for a period of not more than twelve months.

4. Revoke the license or registration.

I. The director shall review the records of a finding by the board involving a disciplinary action and may affirm, reverse, adopt, modify, supplement, amend or reject the recommendation of the board. On a finding by the board and review and concurrence by the director that a licensee or registrant committed a violation of subsection A of this section, the probation, suspension or revocation applies to all licenses or registrations held by a licensee or registrant under chapter 24 of this title and this chapter.

§ 32-2637 Violations; classification

Any person who violates any of the provisions of this chapter is guilty of a class 1 misdemeanor.

§ 32-2638 Disclosure of information to law enforcement officer or county attorney

Any licensee or registrant under this chapter shall, upon demand, divulge to any law enforcement officer or county attorney any information he may acquire as to any criminal offense.

§ 32-2639 Authority to investigate complaint; filing and response to complaints; retention of records

A. The department may investigate any licensee, registrant, associate, employee or person if that licensee, registrant, associate, employee or person advertises as providing or performs services that require licensure or registration under this chapter.

B. The department shall investigate whether a licensee or registrant is engaged in activities that do not comply with or are prohibited by this chapter.

C. The department shall enforce this chapter without regard to the place or location in which a violation may have occurred.

D. On the complaint of any person or on its own initiative, the department may investigate any suspected violation of this chapter or the business and business methods of any licensee, registrant or employee of a licensee or applicant for licensure or registration under this chapter.

E. A complaint filed against any licensee, associate, registrant or employee of a licensee must be in writing, on a form prescribed by the department and filed with the department.

F. In any investigation by the department, each licensee, associate, registrant, applicant, agency or employee, on request of the department, shall provide records and truthfully respond to questions concerning activities regulated under this chapter. The licensee shall maintain these records for five years at the licensee’s principal place of business or at another location for a person whose license has been terminated, canceled or revoked. At the department’s request, the licensee shall make the records available immediately to the department during normal business hours or at another time acceptable to the parties, unless the department grants an extension. The licensee shall provide copies of any records requested by the department.

§ 32-2640 Grounds for refusal to issue or renew an agency license; judicial review; good cause exceptions

A. Except as provided in subsection E of this section, the department may deny the issuance or renewal of an agency license if the individual applicant or, if the applicant is other than an individual, any qualifying party:

1. Does not meet the requirements prescribed in section 32-2612.

2. Has committed any act that, if committed by a licensee, would be grounds for the suspension or revocation of a license pursuant to this chapter.

3. Has been refused a license under this chapter, or had such a license revoked or has been an associate of any applicant or licensee who has been refused a license under this chapter or who has had a license revoked.

4. While not licensed under this chapter, has committed or aided and abetted the commission of any act for which a registration certificate is required by this chapter or has acted, or attempted to act, as a private security guard service or a security guard.

5. Has knowingly made any false statement in the application.

6. Failed to provide adequate verification of required experience.

B. The denial of the issuance of an agency license or identification card under this chapter shall be in writing and shall describe the basis for the denial. The denial notice shall inform the applicant that if the applicant desires a hearing by the board to contest the denial, the applicant shall submit the request in writing to the department within thirty calendar days after service of the denial. Service is complete on the mailing of the denial to the address listed on the application.

C. Except as provided in section 41-1092.08, subsection H, final decisions of the director are subject to judicial review pursuant to title 12, chapter 7, article 6.

D. If an applicant is denied an agency license, the applicant may petition the board for a good cause exception.

E. If the board granted a licensee a good cause exception pursuant to section 32-2609, the department may not deny the licensee's renewal application based on factors already reviewed by the board when granting the good cause exception.

§ 32-2641 Grounds for refusal to issue a security guard identification card or registration certificate; judicial review; good cause exceptions

A. Except as provided in subsection F of this section, the department may deny the issuance of an identification card to an applicant for a security guard registration certificate, an armed security guard registration certificate, a security guard training instructor registration certificate or a firearms safety training instructor registration certificate if the applicant:

1. Does not meet the requirements prescribed in section 32-2622 for the appropriate type of certificate.

2. Has committed any act that would be grounds for the suspension or revocation of a security guard registration pursuant to this chapter.

3. Has knowingly made any statement that is false in the application.

B. If the director determines that an applicant's criminal history contains open arrest information, the director shall:

1. Issue a notice to the applicant allowing forty-five days for the applicant to provide documentation concerning the disposition of the arrest or arrests.

2. Send to the applicant at the applicant's last known residential address sufficient information to assist the applicant in complying with the director's request under paragraph 1 of this subsection.

C. The denial of the issuance of a registration certificate under this article shall be in writing and shall describe the basis for the denial. The denial notice shall inform the applicant that if the applicant desires a hearing by the board to contest the denial the applicant shall submit the request in writing to the department within thirty calendar days after service of the denial notice. Service is complete on the mailing of the denial to the address listed on the application.

D. Except as provided in section 41-1092.08, subsection H, final decisions of the director are subject to judicial review pursuant to title 12, chapter 7, article 6.

E. If an applicant is denied a registration certificate, the applicant may petition the board for a good cause exception.

F. If the board granted an applicant for a security guard registration certificate, an armed security guard registration certificate, a security guard training instructor registration certificate or a firearms safety training instructor registration certificate a good cause exception pursuant to section 32-2609, the department may not deny the person's renewal application based on factors already reviewed by the board when granting the good cause exception.

§ 32-2642 Notice of arrest

Within forty-eight hours after being arrested, a security guard, an armed security guard, a security guard training instructor or a firearms safety training instructor shall notify the person's employer of the arrest. Within twenty-four hours after receiving notice of the arrest, the employer shall notify the department of the arrest.

Chapter 28 Radiologic Technologists

Article 1 Administration

§ 32-2801 Definitions

In this chapter, unless the context otherwise requires:

1. "Certificate" means a certificate that is granted and issued by the department.

2. "Certified technologist" means a person holding a certificate that is granted and issued by the department.

3. "Computed tomography technologist" means a person who applies ionizing radiation to a human using a computed tomography machine for diagnostic purposes.

4. "Department" means the department of health services.

5. "Direction" means responsibility for and control of the application of ionizing radiation to human beings for diagnostic or therapeutic purposes.

6. "Director" means the director of the department of health services.

7. "Ionizing radiation" means gamma rays and x-rays, alpha and beta particles, high speed electrons, neutrons, protons and other nuclear particles or rays.

8. "Leg" means that part of the lower limb between the knee and the foot.

9. "Licensed practitioner" means a person who is licensed or otherwise authorized by law to practice medicine, dentistry, osteopathic medicine, podiatry, chiropractic or naturopathic medicine in this state.

10. "Mammographic technologist" means a person who applies ionizing radiation to the breasts of a human being for diagnostic purposes.

11. "Nuclear medicine technologist" means a person who uses radiopharmaceutical agents on humans for diagnostic or therapeutic purposes as set forth in rules adopted pursuant to section 32-2815.

12. "Practical technologist in bone densitometry" means a technologist who holds a certificate to apply ionizing radiation to a person's hips, spine and extremities through the use of a bone density machine.

13. "Practical technologist in podiatry" means a person holding a practical technologist in podiatry certificate that is granted and issued by the department.

14. "Practical technologist in podiatry certificate" means a certificate that is issued to a person, other than a licensed practitioner, who applies ionizing radiation to the foot and leg for diagnostic purposes while under the specific direction of a licensed practitioner.

15. "Practical technologist in radiology" means a person holding a practical technologist in radiology certificate that is granted and issued by the department.

16. "Practical technologist in radiology certificate" means a certificate that is issued to a person, other than a licensed practitioner, who applies ionizing radiation to specific parts of the human body for diagnostic purposes while under the specific direction of a licensed practitioner.

17. "Radiation therapy technologist" means a person who uses radiation on humans for therapeutic purposes.

18. "Radiologic technologist" means a person who holds a certificate that is issued by the department and that allows that person to apply ionizing radiation to individuals at the direction of a licensed practitioner for general diagnostic or therapeutic purposes.

19. "Radiologic technology" means the science and art of applying ionizing radiation to human beings for general diagnostic or therapeutic purposes.

20. "Radiologic technology certificate" means a certificate that is issued in radiologic technology to a person with at least twenty-four months of full-time study or its equivalent through an approved program and who has successfully completed an examination by a national certifying body.

21. "Radiologist" means a licensed practitioner of medicine or osteopathic medicine who has undertaken a course of training that meets the requirements for admission to the examination of the American board of radiology or the American osteopathic board of radiology.

22. "Radiologist assistant" means a person who holds a certificate pursuant to section 32-2819 and who performs independent advanced procedures in medical imaging and interventional radiology under the guidance, directions, supervision and discretion of a licensed practitioner of medicine or osteopathic medicine specializing in radiology as set forth in section 32-2819 and the rules adopted pursuant to that section.

23. "Unethical professional conduct" means the following acts, whether occurring in this state or elsewhere:

(a) Intentionally betraying a professional confidence or intentional violation of a privileged communication except as required by law. This subdivision does not prevent the department from exchanging information with the radiologic licensing and disciplinary boards of other states, territories or districts of the United States or foreign countries.

(b) Using controlled substances as defined in section 36-2501, narcotic drugs, dangerous drugs or marijuana as defined in section 13-3401 or hypnotic drugs, derivatives or any compounds, mixtures or preparations that may be used for producing hypnotic effects or the use of alcohol to the extent that it affects the ability of the certificate or permit holder to practice his profession.

(c) Using drugs for other than accepted therapeutic purposes.

(d) Committing gross malpractice.

(e) Procuring or attempting to procure a certificate or license by fraud or misrepresentation.

(f) Having professional connection with or lending one's name to an illegal practitioner of radiologic technology or any other health profession.

(g) Offering, undertaking or agreeing to correct, cure or treat a condition, disease, injury, ailment or infirmity by a secret means, method, device or instrumentality.

(h) Refusing to divulge to the department, on reasonable notice and demand, the means, method, device or instrumentality used in the treatment of a condition, disease, injury, ailment or infirmity. This subdivision does not apply to communication between a technologist or permit holder and a patient with reference to a disease, injury, ailment or infirmity, or as to any knowledge obtained by personal examination of the patient.

(i) Giving or receiving, or aiding or abetting the giving or receiving, of rebates, either directly or indirectly.

(j) Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of radiologic technology.

(k) Having a certificate or license refused, revoked or suspended by any other state, territory, district or country for reasons that relate to the person's ability to safely and skillfully practice radiologic technology or to any act of unprofessional conduct.

(l) Engaging in any conduct or practice that does or would constitute a danger to the health of the patient or the public.

(m) Obtaining a fee by fraud or misrepresentation or wilfully or intentionally filing a fraudulent claim with a third party for services rendered or to be rendered to a patient.

(n) Employing uncertified persons to perform or aiding and abetting uncertified persons in the performance of work that can be done legally only by certified persons.

(o) Violating or attempting to violate, directly or indirectly, or assisting or abetting the violation of or conspiring to violate this chapter or a rule adopted by the department.

24. "Unlimited practical technologist in radiology" means a person holding an unlimited practical technologist in radiology certificate that is granted and issued by the department.

25. "Unlimited practical technologist in radiology certificate" means a certificate that was issued to a person in 1977 or 1978, other than a licensed practitioner, who applies ionizing radiation to the human body for diagnostic purposes while under the specific direction of a licensed practitioner.

§ 32-2802 Advisory committee; members; appointment; terms; compensation; meetings; removal; employees; immunity

A. The director shall appoint an advisory committee to collaborate with and assist the director in performing the duties prescribed in this chapter. The director shall inform the advisory committee regarding all disciplinary actions. In addition to the director who serves as chairperson, the advisory committee shall include:

1. Four members who are practicing radiologic technologists, who have at least five years' experience and who hold radiologic technology certificates issued pursuant to this chapter.

2. Two public members. Only a person who has never been a member, or the spouse of a member, of a health care delivery profession and who has never had a material financial interest in providing health care or in a directly related activity is eligible to be a public member of the advisory committee.

3. Two members who are licensed practitioners, one of whom is a radiologist.

4. One member who is a practical technologist in radiology, who has at least five years' experience and who is a current license holder.

5. One member who is a practicing nuclear medicine technologist, who has at least five years' experience in that field and who holds an active certificate issued pursuant to this chapter.

B. All advisory committee members serve a term of three years to begin and end on the third Monday of January in the appropriate year. The director shall fill a vacancy that occurs before the expiration of a term for the unexpired term.

C. Each advisory committee member is eligible to receive compensation as determined pursuant to section 38-611.

D. The advisory committee shall meet at least once every six months at times and places determined by the advisory committee. Special meetings also may be held at such times as the advisory committee may decide or on the call of the chairperson. A written notice of the time, place and purpose of any special meeting shall be mailed to all members of the advisory committee.

E. The department may provide additional professional, technical, secretarial and clerical assistance as the advisory committee may require to carry out its functions.

F. The advisory committee shall hold examinations for applicants for certificates pursuant to this chapter at least once every six months, at times and places as the advisory committee may determine.

G. The director may terminate the term of an advisory committee member and declare the position vacant if the member fails to attend three consecutive advisory committee meetings.

H. The advisory committee may hire practicing radiologic technologists and other medical specialists to assist it in preparing and administering examinations. These specialists shall receive the same compensation as advisory committee members.

I. The advisory committee may employ temporary and permanent personnel necessary to carry out the purposes of this chapter.

J. Advisory committee members, advisory committee staff and advisory committee examiners are personally immune from suit for all actions taken in good faith in furtherance of the purposes of this chapter.

§ 32-2803 Rules

The director may adopt rules as may be needed to carry out the purposes of this chapter. The rules shall include:

1. Minimum standards of training and experience for persons to be certified pursuant to this chapter and procedures for examining applicants for certification.

2. Provisions identifying the types of applications of ionizing radiation for a practical technologist in podiatry, practical technologist in radiology, practical technologist in bone densitometry, radiologic technologist, radiation therapy technologist, mammographic technologist, nuclear medicine technologist, computed tomography technologist and radiologist assistant and any new radiologic modality technologist and those minimum standards of education and training to be met by each type of applicant.

§ 32-2804 School approval; standards; considerations

A. The department may approve a school of radiologic technology as maintaining a satisfactory standard if its course of study:

1. Is for a period of at least twenty-four months of full-time study or its equivalent and is accredited by the committee on allied health accreditation or meets or exceeds the standards of this chapter.

2. Includes at least four hundred hours of classroom work, including radiation protection, x-ray physics, radiographic techniques, processing techniques, nursing procedures, anatomy and physiology, radiographic positioning, radiation therapy and professional ethics.

3. Includes at least one thousand eight hundred hours devoted to clinical experience.

4. Includes demonstrations, discussions, seminars and supervised practice.

5. Includes at least eighty hours of regularly scheduled supervised film critiques.

B. An approved school of radiologic technology may be operated by a medical or educational institution or other public or private agency or institution and, for the purpose of providing the requisite clinical experience, shall be affiliated with one or more hospitals that the department determines are likely to provide this experience.

C. In approving a school of radiologic technology, the department shall consider the standards adopted by appropriate professional organizations, including the joint review committee on education in radiologic technology, and may accept the certification of a school of radiologic technology or the accreditation of a hospital to provide requisite clinical experience if the department finds that certification or accreditation was granted on the basis of standards that will afford the same protection to the public as the standards provided by this chapter.

§ 32-2805 Fees; deposit

The department shall deposit all fees collected pursuant to this chapter as prescribed by section 30-654, subsection C.

Article 2 Certification

§ 32-2811 Ionizing radiation; prohibitions; limitations; exceptions

A. Except as provided in subsection D of this section, a person may not use ionizing radiation on a human being unless the person is a licensed practitioner or the holder of a certificate as provided in this chapter.

B. A person holding a certificate may use ionizing radiation on human beings only for diagnostic or therapeutic purposes while operating in each particular case at the direction of a licensed practitioner, except that a person holding a certificate may use ionizing radiation on human beings for diagnostic purposes only while operating in each particular case at the direction of a licensed practitioner who is licensed in any other state, territory or district of the United States. The application of ionizing radiation and the direction to apply ionizing radiation are limited to those persons or parts of the human body specified in the law under which the licensed practitioner is licensed. The provisions of the technologist's certificate govern the extent of application of ionizing radiation.

C. The provisions of this chapter relating to technologists do not limit, enlarge or affect in any respect the practice of their respective professions by duly licensed practitioners.

D. The requirement of a certificate does not apply to:

1. A hospital resident specializing in radiology who is not a licensed practitioner in this state or a student enrolled in and attending a school or college of medicine, osteopathic medicine, podiatry, dentistry, naturopathic medicine, chiropractic or radiologic technology and who applies ionizing radiation to a human being while under the specific direction of a licensed practitioner.

2. A person engaged in performing the duties of a technologist in that person's employment by an agency, bureau or division of the government of the United States.

3. Dental hygienists licensed in this state and dental assistants holding a valid certificate in dental radiology from a course approved by the state board of dental examiners.

4. Persons providing assistance during an ionizing radiation procedure, apart from such procedures conducted in a health care institution, under the direction of a person licensed to use an ionizing radiation machine.

5. A person who is employed by or acting on behalf of the state department of corrections or a county jail and who uses a low-dose ionizing radiation body scanning device to detect contraband, as defined in section 13-2501, in or on an inmate.

6. A podiatric medical assistant who holds a valid certificate in podiatric radiology from a course approved by the state board of podiatry examiners.

E. Subsection B of this section does not apply to ionizing radiation ordered by a licensed practitioner for other than diagnostic or therapeutic purposes pursuant to section 13-2505, subsection E.

§ 32-2812 Applications for certificate; qualifications; fees; examination; denial

A. An applicant for a certificate shall submit an application for certification or an application for examination for certification, accompanied by a nonrefundable fee established by the director. An applicant who has practiced radiography without certification shall pay a prorated fee retroactively to the earliest date of uncertified practice. The fee for a replacement certificate is $10. The application for examination fee is $70 and shall not be prorated. An application shall contain information that the applicant:

1. Is at least eighteen years of age.

2. Meets one of the following requirements:

(a) In the case of an application for radiologic technologist, radiation therapy technologist or nuclear medicine technologist certification, has successfully completed a course of study at a school of radiologic technology that is approved by the department or an out-of-state school of radiologic technology that is approved by the joint review committee on education in radiologic technology, the American registry of radiologic technologists or the nuclear medicine technology certification board.

(b) In the case of an application for practical technologist in podiatry certification, practical technologist in bone densitometry certification and practical technologist in radiology certification, satisfactorily meets the basic requisites determined by the department pursuant to section 32-2803.

(c) In the case of an application for radiologist assistant certification, has obtained a baccalaureate degree or postbaccalaureate certificate from an advanced academic program that encompasses a nationally recognized radiologist assistant curriculum that includes a radiologist-directed clinical preceptorship. An applicant for certification before April 1, 2009 is not required to have a baccalaureate degree or postbaccalaureate certificate, but must have completed an advanced academic program that encompasses a nationally recognized radiologist assistant curriculum that includes a radiologist-directed clinical preceptorship.

B. If the application is in proper form and it appears that the applicant meets the eligibility requirements, the applicant shall be notified of the time and place of the next examination.

C. The department may accept, in lieu of its own examination, a certificate issued on the basis of an examination by a certificate-granting body recognized by the department or a certificate, registration or license issued by another state if that state's standards for certification, registration or licensure are satisfactory to the department.

D. The department may deny a certificate to an applicant who has committed an act or engaged in conduct in any jurisdiction that resulted in a disciplinary action against the applicant or that would constitute grounds for disciplinary action under this chapter.

§ 32-2813 Examination; contents; subsequent examinations

A. Examinations for certification shall include the subjects of radiation protection, x-ray physics, radiographic techniques, processing techniques, nursing procedures, anatomy terminology, radiological mathematics, professional ethics and such other subjects as the department may deem appropriate.

B. The department shall prepare lists of examination questions or problems and administer the examinations.

C. Examinations shall include written questions but may also include practical and oral portions. Following each examination, the papers and the practical and oral examinations shall be graded and the standing of each applicant shall be recorded. The department shall either pass or reject each applicant.

D. An applicant who fails to pass an examination may reapply for examination in the manner prescribed by section 32-2812. The department shall require a candidate who fails the examination three times to successfully complete additional training prescribed by the department before accepting the candidate for reexamination.

§ 32-2814 Initial certificates; special permits; temporary certificates

A. The department shall issue an initial certificate that is valid for two years to each candidate who has paid the prescribed fee and who either has successfully passed the examination or has been accepted pursuant to section 32-2812.

B. The department, on application, may issue a special permit to exempt a person from this chapter if the department finds to its satisfaction that there is substantial evidence that the people in the locality of the state in which such an exemption is sought would be denied adequate medical care because of the unavailability of certified licensed practitioners or persons holding certificates pursuant to this chapter. The department shall issue a special permit for a limited period of time, not to exceed one year, to be prescribed by the department in accordance with the purposes of this chapter. The department may renew a special permit if the permittee's circumstances have not changed.

C. The department may issue a temporary certificate to any person whose certification or recertification is pending and in whose case the issuance of a temporary certificate may be justified by reason of special circumstances.

D. A temporary certificate shall be issued only if the department finds that its issuance will not violate the purposes of this chapter or tend to endanger the public health and safety. A temporary certificate expires thirty days after the date of the next examination if the applicant is required to take the examination or, if the applicant does not take the examination, on the date of the examination. In all other cases, a temporary certificate expires when the determination is made either to issue or to deny the issuance of a certificate. A temporary certificate shall not be valid for more than one year and may not be renewed.

E. A person shall submit an application for certification in a form prescribed by the department.

§ 32-2815 Rules; bone densitometry certification; nuclear medicine certification; continuing education

A. The department shall adopt rules regarding the certification of practical technologists in bone densitometry to allow the certificate holder to apply ionizing radiation to a person's extremities through the use of a bone densitometry machine. The rules shall prescribe:

1. The minimum education and training qualifications for certification. The qualifications prescribed by the department shall allow a person who does not meet the education and training requirements of a radiologic technologist or a practical technologist in radiology to obtain a certificate as a practical technologist in bone densitometry.

2. The application and renewal fees.

B. Subsection A of this section does not prohibit a radiologic technologist or a practical technologist in radiology from operating a bone densitometry machine.

C. A person who wishes to practice as a nuclear medicine technologist must apply to the department for certification as prescribed by rule. The department shall adopt rules to establish minimum educational and training requirements for nuclear medicine technologists.

D. The department shall adopt rules to prescribe the following minimum continuing education requirements for the renewal of the following certificates:

1. Practical technologist in podiatry, two hours every two years.

2. Practical technologist in radiology, six hours every two years.

3. Practical technologist in bone densitometry, two hours every two years.

4. Unlimited practical technologist in radiology, twenty-four hours every two years.

5. Nuclear medicine technologist, twenty-four hours every two years.

6. Radiologist assistant, fifty hours every two years.

7. Radiologic technologist, twenty-four hours every two years.

8. Radiation therapy technologist, twenty-four hours every two years.

E. The department may require an applicant for renewal to document compliance with the appropriate continuing education requirements of subsection D of this section.

§ 32-2816 Certificates; fee; terms; registration; renewal; cancellation; waiver

A. Except as provided in section 32-4301, a certificate issued under this section is valid for two years.

B. The department may renew a certificate for two years on payment of a renewal fee established by the director and submission of a renewal application containing information the department requires to show that the applicant for renewal is a technologist in good standing. The applicant for renewal shall also present evidence satisfactory to the department of having completed the required continuing education in radiologic technology within the preceding two years. If a radiologic technologist is certified by the American registry of radiologic technologists or nuclear medicine technology certification board, that person must satisfy the continuing education requirements of this subsection by providing the department with evidence of the technologist's good standing and current certification with that registry.

C. A certificate holder who fails to renew the certificate on or before the certificate's expiration as prescribed in subsection B of this section shall pay a penalty fee of fifty dollars for late renewal.

D. A certificate holder who does not renew a certificate within thirty days after the certificate expires and who continues the active practice of radiologic technology without adequate cause satisfactory to the department is subject to censure, reprimand or denial of right to renew the certificate pursuant to section 32-2821.

E. On the request of a certificate holder in good standing, the department shall cancel a certificate.

F. The department shall waive the renewal fee if a certificate holder submits an affidavit to the department stating that the certificate holder is retired from the practice of radiologic technology or wishes to be placed on inactive status. A retired or inactive technologist who practices is subject to the same penalties imposed pursuant to this chapter on a person who practices radiologic technology without a certificate.

G. The department may reinstate a technologist on retired or inactive status on payment of the renewal fee pursuant to subsection B of this section.

§ 32-2817 Use of title; display of certificate or permit

A. A person holding a certificate may use the title "certified radiologic technologist", "certified nuclear medicine technologist", "certified radiation therapy technologist", "certified computed tomography technologist", "certified mammographic technologist", "certified radiologist assistant", "certified practical technologist in podiatry", "certified practical technologist in bone densitometry" or "certified practical technologist in radiology", as applicable. No other person shall be entitled to use such titles or title or letters after such person's name that indicates or implies that such person is a certified technologist or to represent the person in any way, whether orally or in writing, expressly or by implication, as being so certified.

B. Every technologist or special permit holder shall display a certificate or permit at the technologist's or permit holder's place of employment.

§ 32-2818 Lapsed certification; inactive status; reinstatement

A person who was an unlimited practical technologist in radiology under this chapter from and after December 31, 1992 and whose certificate was not suspended or revoked but who failed to renew the certificate, on application to the department, may be placed on inactive status or reinstated pursuant to section 32-2816.

§ 32-2819 Radiologist assistants; certification; rules; scope of practice

A. A person who wishes to practice as a radiologist assistant must apply to the department for a certificate on a form and in the manner prescribed by the department pursuant to the requirements of section 32-2812.

B. The department shall adopt rules to implement this section. The rules shall include the following:

1. Continuing education requirements.

2. Any other requirements the department considers appropriate to implement this section.

C. Pursuant to rules adopted by the department, a radiologist assistant may do the following under the direct supervision of a radiologist:

1. Perform fluoroscopic procedures.

2. Assess and evaluate the physiologic and psychological responsiveness of patients undergoing radiologic procedures.

3. Evaluate image quality, make initial image observations and communicate observations to the supervising radiologist.

4. Administer contrast media or other medications prescribed by the supervising radiologist.

5. Perform any other procedures consistent with rules adopted by the department.

D. In adopting rules pursuant to subsection C of this section, the department shall consider guidelines established by the the American society of radiologic technologists and the American registry of radiologic technologists.

E. A radiologist assistant shall not interpret images, make diagnoses or prescribe medications or therapies.

F. A radiologist who supervises a radiologist assistant may authorize the assistant to perform only those radiologic procedures described in this section.

G. A person shall not do any of the following without a certificate issued pursuant to this section:

1. Perform the radiologic procedures described in subsection C of this section.

2. Claim to be a radiologist assistant, including using any sign, advertisement, card, letterhead, circular or other writing, document or design to induce others to believe the person is authorized to practice as a radiologist assistant.

H. Subsection G of this section does not apply to either of the following:

1. A person engaging in the scope of practice for which the person holds a valid license or certificate.

2. A person performing a task as part of an advanced academic program.

Article 3 Regulation

§ 32-2821 Revocation or suspension of certificate or permit; civil penalties; enforcement; appeals; hearings

A. The director may revoke or suspend a certificate or permit issued under this chapter if the holder of the certificate or permit:

1. Is guilty of any fraud or deceit in activities as a technologist or radiologist assistant or has been guilty of any fraud or deceit in procuring or maintaining a certificate.

2. Has been convicted in a court of competent jurisdiction of a crime involving moral turpitude. If the conviction has been reversed and the holder of the certificate or permit has been discharged or acquitted or if the holder of the certificate or permit has been pardoned or the holder's civil rights have been restored, the certificate may be restored.

3. Is an habitual drunkard or is addicted to the use of morphine, cocaine or other drugs having similar effect, is insane or uses hallucinogens.

4. Has knowingly aided or abetted a person, not otherwise authorized, who is not a certified technologist or radiologist assistant or has not been issued a special permit in engaging in the activities of a technologist or radiologist assistant.

5. Has undertaken or engaged in any practice beyond the scope of the authorized activities of a certified technologist, radiologist assistant or permit holder pursuant to this chapter.

6. Has impersonated a duly certified technologist, radiologist assistant or permit holder or former duly certified technologist, radiologist assistant or permit holder or is engaging in the activities of a technologist, radiologist assistant or permit holder under an assumed name.

7. Has been guilty of unethical professional conduct.

8. Has continued to practice without obtaining a certificate renewal or a special permit renewal.

9. Has applied ionizing radiation to a human being when not operating in each particular case under the direction of a duly licensed practitioner or to any person or part of the human body other than specified in the law under which the practitioner is licensed.

10. Has acted or is acting as an owner, co-owner or employer in any enterprise engaged in the application of ionizing radiation to human beings for the purpose of diagnostic interpretation or the treatment of disease, without being under the direction of a licensed practitioner.

11. Has used or is using the prefix "Dr.", the word "doctor" or any prefix or suffix to indicate or imply that the person is a duly licensed practitioner if this is not true.

12. Is or has been guilty of incompetence or negligence in activities as a technologist.

13. Is or has been afflicted with any medical problem, disability or addiction that the department determines impairs the certificate or permit holder's professional competence.

14. Has interpreted a diagnostic image for a physician, a patient, the patient's family or the public.

15. Has violated any provision of this chapter or rule adopted pursuant to this chapter.

B. A person may appeal the revocation or suspension under subsection A of this section by requesting a hearing pursuant to title 41, chapter 6, article 10. If the revocation or suspension is appealed, the director may not take further action to enforce the revocation or suspension until after the hearing.

C. If the certificate of any person has been revoked or suspended, the department, after the expiration of two years, may consider an application for restoration of the certificate.

D. The director may assess a civil penalty against a person in an amount not to exceed two hundred fifty dollars for each violation of this chapter or a rule adopted pursuant to this chapter. Each day a violation occurs constitutes a separate violation.

E. The director shall issue a notice of assessment that includes the proposed amount of the assessment. In determining the amount of a civil penalty assessed against a person under this subsection, the department shall consider all of the following:

1. Repeated violations of statutes and rules.

2. Patterns of noncompliance.

3. Types of violations.

4. The severity of violations.

5. The potential for and occurrences of actual harm.

6. Threats to health and safety.

7. The number of persons affected by the violations.

8. The number of violations.

9. The length of time the violations have been occurring.

F. A person may appeal the civil penalty assessment by requesting a hearing pursuant to title 41, chapter 6, article 10. If an assessment is appealed, the director may not take further action to enforce and collect the assessment until after the hearing.

G. Actions to enforce the collection of civil penalties assessed pursuant to this section shall be brought by the attorney general or the county attorney in the name of the state in the justice court or the superior court in the county in which the violation occurred.

H. The department shall deposit, pursuant to sections 35-146 and 35-147, civil penalties collected pursuant to this section in the state general fund.

I. The department shall conduct any hearing to revoke or suspend a certificate or permit or impose a civil penalty under this section pursuant to title 41, chapter 6, article 10.

J. The department may issue a nondisciplinary order requiring the certificate holder or permit holder to complete a prescribed number of hours of continuing education in an area or areas prescribed by the department to provide the certificate holder or permit holder with the necessary understanding of current developments, skills, procedures or treatment. The department may also file a letter of concern, issue a decree of censure, prescribe a period of probation or restrict or limit the practice of a certificate or permit holder.

§ 32-2822 Unlawful acts; classification

A. It is unlawful for any person to:

1. Sell or fraudulently obtain or furnish a radiologic technologist diploma, certificate or record.

2. Engage in the activities of a technologist under cover of a diploma or certificate illegally obtained or obtained by fraudulent misrepresentation of a material fact.

3. Engage in the activities of a technologist under a false or assumed name.

4. Engage in or hold himself or herself out as entitled to engage in the activities of a technologist without a valid certificate.

5. Otherwise violate any of the provisions of this chapter or any rule promulgated pursuant to this chapter.

B. Any person who violates any provisions of this section shall be guilty of a class 2 misdemeanor.

§ 32-2824 Inspections

A. The department or its duly authorized representatives may enter during scheduled work hours on private or public property for the purpose of:

1. Ensuring that only certified individuals or individuals who are exempt from certification are operating ionizing radiation machines.

2. Determining whether a certified individual is practicing beyond the scope of the person's certificate.

3. Determining whether a certified individual has violated the provisions of this chapter.

4. Auditing ionizing radiation logbooks.

5. Determining compliance with this chapter and the rules adopted pursuant to this chapter.

B. The department may enter areas under the jurisdiction of the federal government only with its permission.

§ 32-2825 Injunctive relief

The department may file a petition for injunctive relief against a person who violates a provision of this chapter. The person may be served in any county of this state. The action shall be brought on behalf of the director by the attorney general or the county attorney of the county in which the violation is occurring.

Article 4 Mammography

§ 32-2841 Mammographic technologists; computed tomography technologists; certification; renewal

A. A person who wishes to perform diagnostic mammography or screening mammography as defined in section 30-651 shall obtain a mammographic technologist certificate from the department. A person who wishes to perform computed tomography shall obtain a computed tomography technologist certificate from the department. The department shall issue a certificate to an applicant who:

1. Pays a twenty dollar application fee.

2. Holds a current radiologic technology certificate issued by the department.

3. For a mammographic certification, completes the training and education requirements of subsection B of this section and passes an examination as prescribed in subsection D of this section.

4. For a computed tomography technologist certification, provides documentation of two years of experience in computed tomography and completion of twelve hours of computed tomography specific education or passes an examination as prescribed in subsection D of this section.

B. To satisfy the education requirements of subsection A of this section, an applicant shall meet the initial training and education requirements of the mammography quality standards act regulations for quality standards of mammographic technologists, 21 Code of Federal Regulations section 900.12.

C. The department shall issue a student mammography permit, preceptorship or temporary certificate to a person who is in training and meets the requirement of subsection A, paragraph 2 of this section if the applicant also provides the department with verification of employment and the name of the radiologist who agrees to be responsible for the applicant's supervision and training. A student mammography permit, preceptorship or temporary certificate is valid for one year from the date it is issued and may not be renewed. If the holder completes all of the requirements of subsection A of this section within the permitted period, the department shall issue a mammographic or computed tomography technologist certificate. The mammographic or computed tomography technologist certificate shall be renewed as prescribed under subsection E of this section.

D. To satisfy the examination requirements of this section an applicant shall pass an examination in mammography or computed tomography administered by the department or, in lieu of its own examination, the department may accept a certificate issued on the basis of an examination by a certificate-granting body recognized by the department.

E. Except as provided in section 32-4301, a certificate that is issued under this section is valid for two years. The department shall notify a certificate holder thirty days before the expiration date of the certificate. An applicant for renewal of a mammographic technologist certificate shall meet the continuing education requirements of the mammography quality standards act regulations for quality standards of mammographic technologists, 21 Code of Federal Regulations section 900.12. If a radiologic technologist is certified by the American registry of radiologic technologists, that person must satisfy the continuing education requirements of this subsection by providing the department with evidence of the technologist's good standing and current certification with that registry. The applicant shall also pay a twenty dollar renewal fee to the department.

F. A person or facility that employs a person certified under this section shall report any suspected violations of section 32-2821 to the department. The department shall investigate the complaint. If in the course of its investigation the department determines that a person regulated by another regulatory agency of this state may have violated that agency's laws, the department shall report the violation to the other agency for disciplinary action.

§ 32-2842 Mammographic images; physicians; requirements

A physician licensed under chapter 13 or 17 of this title who reads or interprets mammographic images shall meet the following requirements:

1. Have completed forty hours of medical education credits in mammography.

2. Be certified by either the American board of radiology in diagnostic radiology or the American osteopathic board of radiology in diagnostic radiology, as applicable, or meet the requirements of the mammography quality standards act regulations for quality standards of interpreting physicians, 21 Code of Federal Regulations section 900.12.

§ 32-2843 Facilities; requirements

A. A facility that wishes to conduct patient self-referral mammographic screening examinations after January 1, 1994 shall submit the following to the department:

1. The physician-approved guide for accepting self-referrals by patients.

2. A copy of the facility's quality assurance program.

3. The medical physicist's evaluation report of the facility.

B. A facility that does not have a darkroom on-site or that does not develop the films within one hour of exposure shall submit the following to the department:

1. A description of how the facility plans to ensure that the equipment is operating properly at the start of each day.

2. Information regarding the darkroom that develops the film that demonstrates to the department's satisfaction that transportation conditions will not adversely affect a person's ability to interpret the films.

C. The director shall prescribe requirements for the documents required to be submitted to the department under subsections A and B of this section.

Chapter 29 Homeopathic Physicians

Article 1 Board of Homeopathic and Integrated Medicine Examiners

§ 32-2901 Definitions

In this chapter, unless the context otherwise requires:

1. "Acupuncture" means a medical therapy in which ailments are diagnosed and treated by the specific application of needles, heat or physical and electromagnetic impulses or currents to specific anatomic points on the body through any of the following:

(a) Diagnosing and treating ailments according to the systematic principles of traditional Asian medicine.

(b) Diagnosing and treating pain, neuromuscular disorders and other ailments based on the body's biophysics and neuroanatomic structure.

(c) Using devices to determine the biologic electrical response pattern of acupuncture points as a guide to diagnose bodily ailments and to guide the prescription of homeopathic substances, orthomolecular therapy or pharmaceutical medicine.

2. "Adequate records" means legible medical records that contain at a minimum sufficient information to identify the patient, support the diagnosis, document the treatment, accurately describe the results, indicate advice, cautionary warnings and informed consent discussions with the patient and provide sufficient information for another licensed health care practitioner to assume continuity of the patient's care and to continue or modify the treatment plan.

3. "Approved internship" means that the applicant has completed training in a hospital that was approved for internship, fellowship or residency training by the council on medical education in hospitals of the American medical association, the association of American medical colleges, the royal college of physicians and surgeons of Canada, the American osteopathic association or any board-approved similar body in the United States or Canada that approves hospitals for internship, fellowship or residency training.

4. "Approved school of medicine":

(a) As it relates to a person who is seeking licensure pursuant to section 32-2912, subsection A, means a school or college that offers a course of study that on successful conclusion results in a degree of doctor of medicine or doctor of osteopathic medicine and that offers a course of study that is approved or accredited by the association of American medical colleges, the association of Canadian medical colleges, the American medical association, the American osteopathic association or any board-approved similar body in the United States or Canada that accredits this course of study.

(b) As it relates to a person who is seeking licensure pursuant to section 32-2912, subsection B, means a school or college that on successful completion results in a degree of doctor of homeopathy and that is approved or accredited by the accreditation commission for homeopathic education in North America or any board-approved similar body that accredits this course of study.

5. "Approved training program", for a person who is seeking licensure pursuant to section 32-2912, subsection B, means a program that requires the person to both:

(a) Successfully complete one of the following:

(i) A program that would qualify an applicant to become certified or licensed to practice pursuant to chapter 8, 14, 19 or 39 of this title.

(ii) Training and testing by the United States armed forces at a level comparable to the national standards for emergency medical care technicians.

(iii) A program that is approved or accredited by the accreditation commission for homeopathic education in North America, or its successor organization, or any similar board-approved body that accredits this course of study.

(b) Meet one of the following:

(i) Hold, or pass the examination to hold, a certification from the council for homeopathic certification or its successor as designated by the board.

(ii) Complete a program that is approved by the board and that is designed to prepare the person for the practice of homeopathic medicine.

6. "Board" means the board of homeopathic and integrated medicine examiners.

7. "Chelation therapy" means an experimental medical therapy to restore cellular homeostasis through the use of intravenous, metal-binding and bioinorganic agents such as ethylene diamine tetraacetic acid. Chelation therapy is not an experimental therapy if it is used to treat heavy metal poisoning.

8. "Controlled substance" means a drug or substance or a drug's or substance's immediate precursor that is defined or listed in title 36, chapter 27, article 2 or the rules adopted pursuant to title 36, chapter 27, article 2.

9. "Drug" means a medication or substance that is any of the following:

(a) Recognized in the official compendia or for which standards or specifications are prescribed in the official compendia.

(b) Intended for use in diagnosing, curing, mitigating, treating or preventing human diseases.

(c) Articles other than food that are intended to affect the structure or function of the human body.

10. "Homeopathic medication" means a substance of animal, vegetable or mineral origin that is prepared according to homeopathic pharmacology and that is given usually in a homeopathic microdosage.

11. "Homeopathic microdosage" means a substance prepared so that it is diluted from ten to the minus one to ten to the minus ten-thousandth or higher of its original concentration.

12. "Homeopathy" means a system of medicine that employs homeopathic medication in accordance with the principle that a substance that produces symptoms in a healthy person can cure those symptoms in an ill person.

13. "Immediate family" means a person's spouse, natural or adopted children, parents and siblings and the natural or adopted children, parents and siblings of the person's spouse.

14. "Letter of concern" means an advisory letter to notify a licensee that, while there is insufficient evidence to support disciplinary action, the board believes the licensee should modify or eliminate certain practices.

15. "Licensee" means a person who is licensed pursuant to this chapter.

16. "Medical assistant" means an unlicensed person who has completed an educational program approved by the board, who assists in a homeopathic practice under the supervision of a doctor of homeopathy or homeopathic physician and who performs delegated procedures commensurate with the assistant's education and training but who does not diagnose, interpret, design or modify established treatment programs or violate any statute.

17. "Medical incompetence" means the lack of sufficient medical knowledge or skill by a licensee to a degree that is likely to endanger a patient's health. Medical incompetence includes the range of knowledge expected for basic licensure pursuant to this chapter or as a medical or osteopathic physician in any professional regulatory jurisdiction of the United States and additional knowledge of homeopathic treatments and modalities expected of persons who are licensed pursuant to this chapter.

18. "Minor surgery":

(a) Means surgical procedures that are conducted by a licensee who is licensed pursuant to section 32-2912, subsection A in an outpatient setting and that involve the removal or repair of lesions or injuries to the skin, mucous membranes and subcutaneous tissues, the use of topical, local or regional anesthetic agents, the treatment by stabilizing or casting nondisplaced and uncomplicated fractures of the extremities and diagnostic endoscopies of the intestinal tract, nasopharynx and vagina.

(b) Includes diagnostic aspiration of joints and subcutaneous cysts, therapeutic injections of muscular trigger points, tendons, ligaments and scars and the subcutaneous implantation of medical therapeutic agents.

(c) Does not include the use of general, spinal or epidural anesthesia, the opening of body cavities, the repair of blood vessels and nerves or the biopsy by incision, excision or needle aspiration of internal organs, the breast or the prostate.

19. "Neuromuscular integration" means musculoskeletal therapy that uses any combination of manual methods, physical agents and physical medicine procedures and devices to improve physiological function by normalizing body structure.

20. "Nutrition" means the recommendation by a licensee of therapeutic or preventative dietary measures, food factor concentrates, fasting and cleansing regimens and the rebalancing by a licensee of digestive system function to correct diseases of malnutrition, to resolve conditions of metabolic imbalance and to support optimal vitality.

21. "Orthomolecular therapy" means therapy to provide the optimum concentration of substances normally present in the human body such as vitamins, minerals, amino acids and enzymes. Orthomolecular therapy includes the diagnosis of ailments or physiologic stresses that occur as a result of genetic or environmental influences as well as acquired or inherited allergy and hypersensitivity responses.

22. "Pharmaceutical medicine" means a drug therapy that uses prescription-only and nonprescription pharmaceutical agents as well as medicinal agents of botanical, biological or mineral origin and that is based on current scientific indications or traditional or historical usage indications.

23. "Practice of homeopathic medicine",

(a) For the purposes of a person who is licensed pursuant to section 32-2912, subsection A, means the practice of medicine in which the person purports to diagnose, treat or correct actual or imagined human diseases, injuries, ailments, infirmities and deformities of a physical or mental origin using treatment modalities that include acupuncture, chelation therapy, homeopathy, minor surgery, neuromuscular integration, nutrition, orthomolecular therapy and pharmaceutical medicine.

(b) For the purposes of a person who is licensed pursuant to section 32-2912, subsection B, means the practice of medicine in which the person purports to diagnose, treat or correct actual or imagined human diseases, injuries, ailments, infirmities and deformities of a physical or mental origin by means of homeopathy or nutrition.

24. "Preceptorship" means an extended period of individual study with one or more experienced homeopathic physicians or institutions.

25. "Prescription-only drug" does not include a controlled substance but does include:

(a) A drug that is generally regarded by medical experts to be unsafe if its use and dosage are not supervised by a medical practitioner.

(b) A drug that is approved for use under the supervision of a medical practitioner pursuant to the federal new drug application law or section 32-1962.

(c) A potentially harmful drug if its labeling does not contain full directions for its use by the patient.

(d) A drug that is required by federal law to bear on its label the following words: "Caution: Federal law prohibits dispensing without prescription."

26. "Professional negligence" means any of the following:

(a) That a licensee administers treatment to a patient in a manner that is contrary to accepted practices and that harms the patient if it can be shown to the board's satisfaction that accepted practices are inherently less hazardous.

(b) That a licensee commits an act of unprofessional conduct or displays an unreasonable lack of professional skill or fidelity.

(c) That a licensee's negligence, carelessness or disregard of established principles or practice results in a patient's injury, unnecessary suffering or death.

27. "Special purpose licensing examination" means an examination developed by the national board of medical examiners on behalf of the federation of state medical boards for use by state licensing boards to test the basic medical competence of physicians who are applying for licensure and who have been in practice in another jurisdiction of the United States and to determine the competence of a physician under investigation by a state licensing board.

§ 32-2902 Board of homeopathic and integrated medicine examiners; membership; terms; removal; immunity

A. The board of homeopathic and integrated medicine examiners is established consisting of the following members appointed by the governor:

1. Two public members.

2. Until January 1, 2017, four members who are licensed pursuant to section 32-2912, subsection A.

3. Beginning January 1, 2017, five members who are licensed pursuant to this chapter, one of whom is licensed pursuant to section 32-2912, subsection B.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. Board members serve staggered three-year terms ending on June 30. Board members shall not serve more than three consecutive terms. A board member may continue to serve until that member's replacement takes office.

D. Board members shall be residents of this state for at least three consecutive years immediately before their appointment.

E. The governor may remove a board member from office because of that member's neglect of duty, malfeasance, misfeasance, incompetence or unprofessional or dishonorable conduct.

F. A board member's term of office automatically ends if that member is absent from this state for more than six months or if that member fails to attend three consecutive regularly scheduled board meetings.

G. Board members and board employees are immune from civil liability for any good faith action they take to implement this chapter.

§ 32-2903 Board meetings; organization; compensation

A. The board shall hold an annual meeting each September in Maricopa county. At this meeting the board shall elect from its membership a president and a vice president.

B. The board by majority vote may also establish an annual schedule of regular meetings at times and places prescribed by the board.

C. The board may hold a special meeting if the president determines that this is necessary to carry out the board's functions. The vice president may call a special meeting if the president is unable to do so. At these meetings the board may use communications equipment that allows all participants to hear each other.

D. The executive director shall give each board member ten days' written notice of the date and time of each board meeting. On request of the president, the board by majority vote may waive this notification requirement. If the president is absent, the vice president may request that the board take this action.

E. A majority of board members constitutes a quorum. However, only a majority of the full board may issue a license.

F. Board members are eligible to receive compensation in the amount of not more than $150 for each day of actual service in the business of the board. Board members are eligible to receive compensation for all expenses necessarily and properly incurred in attending board meetings.

G. Medical consultants and agents appointed under section 32-2904 are eligible to receive compensation of not more than $200 for each day of service.

§ 32-2904 Powers and duties

A. The board shall:

1. Conduct all examinations for applicants for a license under this chapter, issue licenses, conduct hearings, regulate the conduct of licensees and administer and enforce this chapter.

2. Enforce the standards of practice prescribed by this chapter and board rules.

3. Collect and account for all fees under this chapter and deposit, pursuant to sections 35-146 and 35-147, the monies in the appropriate fund.

4. Maintain a record of its acts and proceedings, including the refusal to issue a license or the issuance, renewal, suspension or revocation of licenses to practice according to this chapter.

5. Maintain a roster of all persons who are licensed pursuant to this chapter that includes:

(a) The licensee's name.

(b) The current professional office address.

(c) The date and number of the license issued under this chapter.

(d) Whether the licensee is in good standing.

6. Adopt and use a seal, the imprint of which is evidence of the board's official acts.

7. Contract with the department of administration for administrative and recordkeeping services.

8. Charge additional fees that do not exceed the cost of the services for services the board deems necessary to carry out its intent and purposes.

9. Adopt rules regarding the regulation and the qualifications of medical assistants.

10. Keep board records open to public inspection during normal business hours.

11. Meet each January with the acupuncture board of examiners to set financial compensation for staff and operating expense sharing.

B. The board may:

1. Adopt rules necessary or proper to administer this chapter.

2. Subject to title 41, chapter 4, article 4, hire personnel to carry out the purposes of this chapter.

3. Hire investigators subject to title 41, chapter 4, article 4 or contract with investigators to assist in investigating violations of this chapter and contract with other state agencies if required to carry out this chapter.

4. Appoint one of its members to the jurisdiction arbitration panel pursuant to section 32-2907, subsection B.

5. Subject to title 41, chapter 4, article 4, employ consultants to perform duties the board determines are necessary to implement this chapter.

6. Compile and publish an annual directory.

7. Adopt rules to establish competency or professional review standards for any minor surgical procedure.

8. Appoint two or more board members to a subcommittee that reviews and approves applications and issues permits pertaining to homeopathic medical assistants and associated practical educational programs, pursuant to board rules.

9. Appoint two or more board members to a subcommittee that reviews and approves applications and issues permits pertaining to drugs and device dispensing practices, pursuant to board rules.

§ 32-2905 Executive director; duties

A. The executive director of the acupuncture board of examiners shall serve as the executive director of the board of homeopathic and integrated medicine examiners. The staff of the acupuncture board of examiners shall carry out the administrative responsibilities of the board of homeopathic and integrated medicine examiners.

B. The executive director shall:

1. Collect all monies due and payable to the board.

2. Deposit, pursuant to sections 35-146 and 35-147, all monies received by the board in the appropriate fund.

3. Prepare bills for authorized expenditures of the board and obtain warrants from the department of administration.

4. Act as custodian of the seal, books, records, minutes and proceedings of the board.

5. Perform all duties prescribed by the board.

6. Perform all administrative duties of the board.

7. Subject to title 41, chapter 4, article 4, employ personnel necessary to carry out board functions.

§ 32-2906 Board of homeopathic and integrated medicine examiners' fund

(L24, Ch. 222, sec. 37. Eff. until 7/1/28)

A. A board of homeopathic and integrated medicine examiners' fund is established. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies collected under this chapter in the state general fund and deposit the remaining eighty-five percent in the board of homeopathic and integrated medicine examiners' fund.

B. Monies deposited in the fund are subject to section 35-143.01.

§ 32-2906 (Version 2) Board of homeopathic and integrated medicine examiners' fund

(L24, Ch. 222, sec. 38. Eff. 7/1/28)

A. A board of homeopathic and integrated medicine examiners' fund is established. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies collected under this chapter in the state general fund and deposit the remaining ninety percent in the board of homeopathic and integrated medicine examiners' fund.

B. Monies deposited in the fund are subject to section 35-143.01.

§ 32-2907 Jurisdiction arbitration panel; members; procedures; duties

A. When the board receives a complaint on a licensee who is also licensed pursuant to chapter 13 or 17 of this title, the board shall immediately notify the other board.

B. If the boards disagree and if both boards continue to claim jurisdiction over the dual licensee, an arbitration panel shall decide jurisdiction. The panel shall consist of one member from each board, one legal representative from each board and one attorney who is licensed to practice law in this state, who is selected by the supreme court and who shall serve as chairman.

C. The chairman shall fix a date, time and place for a meeting within thirty days after the date the action is referred to the panel.

D. The panel shall determine which board shall investigate the complaint or whether both boards shall conduct their own investigation and hearing.

E. After conducting its investigation, the board chosen to conduct the investigation shall transmit all investigation materials, findings and conclusions to the other board. That board shall review this information to determine if it shall take any action against the licensee or dismiss the complaint.

F. If the licensing boards decide without resorting to arbitration which board shall conduct the investigation, the board conducting the investigation shall transmit all materials, findings and conclusions to the other board.

Article 2 Licensing

§ 32-2911 Persons and acts not affected by chapter

This chapter does not prevent:

1. The practice of any other method, system or science of healing by a person who is licensed pursuant to the laws of this state if that person is acting within the scope of that license.

2. The practice by licensees discharging their duties while members of the armed forces of the United States or other federal agencies.

3. A person from administering a lawful domestic or family remedy, health food or health food supplement to that person's immediate family members.

4. A person from administering over-the-counter homeopathic remedies in the course of providing medical assistance in an emergency.

5. The practice of any of the healing arts offered by this state's Indian tribes.

6. The practice of religion, treatment by prayer or the laying on of hands as a religious rite or ordinance.

7. Any act competently performed by a physician assistant that is within the scope of that person's duties.

8. A person who is licensed to practice homeopathic medicine in any state, district or territory of the United States from infrequently consulting with a person licensed under this chapter or acting pursuant to an invitation by a legitimate sponsor to visit this state to promote professional education through lectures, clinics or demonstrations if that person does not open an office, meet with patients or receive calls relating to the practice of homeopathic medicine outside of the sponsoring institution's facilities and programs.

9. The independent practice of acupuncture as a traditional Asian healing art.

10. The practice of providing treatment of the spiritual vital force in accordance with hahnemanian principles through the use of remedies that are diluted beyond the concentration of substances in drinking water and prepared in the manner described in the homeopathic pharmacopoeia of the United States.

§ 32-2912 Qualifications of applicant; applications; scope of practice

A. The board shall grant a license to practice pursuant to this chapter to an applicant who meets all of the following requirements:

1. Holds a degree from an approved school of medicine or has received a medical education that the board determines is of equivalent quality.

2. Holds a license in good standing to practice medicine or osteopathic medicine that is issued under chapter 13 or 17 of this title or by another state, district or territory of the United States.

3. Has a professional record that indicates that the applicant has not had a license to practice medicine refused, revoked, suspended or restricted in any way by any state, territory, district or country for reasons that relate to the applicant's ability to competently and safely practice medicine.

4. Has a professional record that indicates that the applicant has not committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee under this chapter.

5. Has the physical and mental capacity to safely engage in the practice of medicine.

6. Pays all fees and costs required by the board.

7. Completes the application required by the board.

B. Notwithstanding subsection A, paragraphs 1 and 2 of this section, the board shall issue a license pursuant to this chapter to an applicant who meets the requirements of subsection A, paragraphs 3, 4, 5, 6 and 7 of this section and who either holds a degree from an approved school of medicine or has completed an approved training program.

C. The board may require an applicant to submit additional written or oral information and may conduct additional investigations if it determines that this is necessary to adequately inform itself of the applicant's ability to meet the requirements of this chapter. If an applicant has had a license revoked by or has surrendered a license to another jurisdiction, the applicant may attempt to demonstrate to the board's satisfaction that the applicant is completely rehabilitated with respect to the conduct that was the basis for the revocation or surrender of the license.

D. The board shall vacate its previous order to deny or revoke a license if that denial or revocation was based on the applicant's conviction of a felony or an offense involving moral turpitude and that conviction has been reversed on appeal. The applicant may resubmit an application for licensure as soon as the court enters the reversal.

E. If the board finds that an applicant has committed an act or engaged in conduct that would constitute grounds for disciplinary action, the board shall determine to its satisfaction that the conduct has been corrected, monitored and resolved. If the matter has not been resolved, before it issues a license the board shall determine to its satisfaction that mitigating circumstances exist that prevent its resolution.

F. Except as provided in subsection D of this section, a person shall not submit an application for reinstatement or a new application within five years after the person has completely corrected the conduct and made full legal restitution to the board's satisfaction.

G. An applicant shall submit a verified completed application to the board in a form and within a period of time prescribed by the board. The application shall include:

1. The application fee.

2. Affidavits from three persons who are actively licensed to practice allopathic, osteopathic or homeopathic medicine in any state or district of the United States and who are able to attest to the applicant's fitness to practice pursuant to this chapter.

3. A diploma or certificate issued by an approved training program, a homeopathic college or any other educational institution approved by the board or documentation of the applicant's successful completion of preceptorships or formal postgraduate courses approved by the board.

4. If the person is applying for licensure pursuant to subsection A of this section, proof that the applicant has served a board-approved internship.

5. The applicant's oath that:

(a) All of the information contained in the application and the accompanying evidence or other credentials is correct.

(b) The applicant submitted the credentials without fraud or misrepresentation and that the applicant is the lawful holder of the credentials.

(c) The applicant authorizes the release to the board of any information from any source that the board determines is necessary for it to act on the application.

H. The board shall promptly inform an applicant in writing of any deficiency in the application that prevents the board from acting on it.

I. The board shall consider an application withdrawn if any of the following is true:

1. The applicant submits a written request to withdraw the application.

2. The applicant without good cause fails to appear for a board interview.

3. The applicant fails to submit information to the board within one year after the board's request for that information.

4. The applicant fails to complete the required examination or personal interview within one year after submitting the application.

J. A person who is issued a license pursuant to subsection B of this section shall practice only within the scope of practice as prescribed by this chapter. A licensee who acts outside that scope of practice commits an act of unprofessional conduct. In addition to all other available remedies, the board may seek injunctive relieve pursuant to section 32-2940.

§ 32-2913 Examination; reexamination

A. An applicant for licensure shall successfully pass an examination prescribed by the board.

B. If a person is seeking licensure pursuant to section 32-2912, subsection A, the examination for a license to practice under this chapter shall include all subjects that are generally accepted as necessary for a thorough knowledge of the practice of homeopathic medicine. The board shall prescribe rules for conducting the examination and shall set the passing grade.

C. If a person is seeking licensure pursuant to section 32-2912, subsection B, the examination for a license to practice under this chapter shall include all subjects that are generally accepted as necessary for a thorough knowledge of the practice of homeopathic medicine. The board shall prescribe rules for conducting the examination and shall set the passing grade.

D. The board shall review the examination of any applicant on the applicant's request. A grade on an examination reviewed by the board may be changed only by the majority vote of the members of the board. A person who fails to pass the initial licensure examination may be reexamined within one year after the date of the receipt of the original application fee without payment of additional fees. However, the applicant shall pay all additional fees associated with board-prescribed investigatory examinations such as the special purpose licensing examination.

E. In a written examination, applicants shall be designated by numbers only and the corresponding names shall be kept secret until after the grading of the examinations.

F. The board shall issue a license without examination to an applicant who is seeking licensure pursuant to section 32-2912, subsection B if the applicant holds, or has passed the examination to hold, a certification from the council for homeopathic certification, or its equivalent.

§ 32-2914 Fees

A. The board by formal vote at its annual meeting shall establish fees and penalties that do not exceed the following:

1. $550 for an application for a license to practice homeopathic medicine pursuant to section 32-2912, subsection G, paragraph 1.

2. $250 for issuance of an initial license.

3. $50 for issuance of a duplicate license.

4. $1,000 for annual renewal of a license.

5. $350 for late renewal of a license.

6. $200 for initial and annual renewal of a permit to dispense drugs and devices.

7. $500 for an application for a locum tenens registration.

8. $250 for issuance of a locum tenens registration.

9. $200 for annual renewal of a homeopathic medical assistant registration.

10. $.25 per page for copying board records, documents, letters, minutes, applications and files.

11. $35 for a copy of an audiotape.

12. $100 for the sale of computerized tapes or diskettes that do not require programming.

13. $200 for supervising a homeopathic medical assistant.

14. $300 for each initial application and annual renewal of a registration to conduct a practical educational program for supervised medical assistants.

B. The board may charge a licensee with the board's costs to administer a special purpose licensing examination related to its investigation of the licensee's competence.

C. The board may charge the actual cost of completing a professional conduct investigation to the licensee who is the subject of the investigation if the board determines that the licensee violated this chapter or a board rule.

D. The board shall charge additional fees for services that it is not required to provide under this chapter but that it determines are necessary to carry out its purpose. The board shall charge only the actual cost of providing these services.

§ 32-2915 Licensure; issuance; duplicate licenses; renewal; continuing education; expiration; cancellation

A. The board shall issue a license to practice homeopathic medicine in this state if the applicant meets all board requirements for licensure and pays the licensure fee.

B. The board may issue a duplicate license to a person who holds a license under this chapter on payment of the duplicate license fee.

C. At least thirty days before the first day of the month in which a license was initially issued, the executive director shall notify the licensee of the renewal date and provide a renewal form.

D. Each licensee shall include with the renewal form a statement that the licensee completed at least twenty hours of board-approved continuing education in the preceding year. The board shall not renew a license if the licensee does not fully document compliance with this subsection. The board may waive the continuing education requirements of this subsection for a period prescribed by the board if the licensee's noncompliance was due to disability, military service, absence from the United States or circumstances beyond the control of the licensee. If a licensee fails to complete the continuing education requirements of this subsection for any other reason, the board may grant an extension of not more than sixty days. A licensee who fails to comply with the continuing education requirements of this subsection and who has not been granted a waiver pursuant to this subsection commits an act of unprofessional conduct and is subject to probation or licensure suspension or revocation.

E. A licensee shall submit a completed application for license renewal and the renewal fee each year on or before the last day of the month in which the license was initially issued. A license expires if it is not renewed within sixty days. A licensee who fails to do this by the first day of the following month must also submit a late fee as prescribed by the board. A person who practices homeopathic medicine after a license has expired is in violation of this chapter.

F. The board may issue a license to a person whose license has expired only if that person applies for a license as prescribed in sections 32-2912 and 32-2913.

G. With each application for licensure renewal, the licensee shall include a report of disciplinary actions, restriction and any other action placed on or against the license or practice by any other state regulatory board or agency of the federal government, including the denial of a license for failing a special purpose licensing examination. The report shall include the name and address of the sanctioning agency, the nature of the action taken and a general statement of the charges leading to the action taken.

H. On request of a licensee, the board shall cancel that person's license to practice homeopathic medicine if the licensee is not the subject of a board investigation or disciplinary proceeding. The board may cancel the license of a person who is under investigation for violating this chapter or board rules if the licensee admits to the violations in writing and on the board record.

§ 32-2916 Directory; change of address; civil penalty; fees

A. The board may publish an annual directory containing the following:

1. The names and addresses of the officers and members of the board.

2. The names and addresses of all persons who are certified, licensed or registered by the board.

3. The current certified board rules.

4. A copy of this chapter.

5. A list of approved postgraduate and continuing education courses in the treatment modalities pertinent to the practice of homeopathic medicine.

6. A list of approved schools of medicine and approved training programs.

7. Additional information that the board determines is of interest and importance to licensees.

B. Each licensee shall inform the board in writing of the licensee's home address, personal email address, home telephone number, office address, work email address and office telephone number as requested by the board and within forty-five days after a change in any of this information. The board shall keep a licensee's home address and home telephone number confidential. The board may assess a licensee who fails to comply with this subsection with the board's costs to locate the licensee. The board may also impose a civil penalty on that licensee of not more than $100.

C. The board shall provide each licensee with one copy of the directory free of charge. The board may provide additional copies to the public and licensee for a cost of not more than $25 for each directory.

D. The board shall deposit, pursuant to sections 35-146 and 35-147, monies collected under this section in the board of homeopathic and integrated medicine examiners' fund.

§ 32-2917 Locum tenens registration

A. The board president or a person designated by the board may issue locum tenens registration to a person who meets all of the following requirements:

1. Submits proof satisfactory to the board that the applicant for registration holds an unrestricted license to practice allopathic, osteopathic or homeopathic medicine in another state, district or territory of the United States, that the license has not been revoked or suspended for any reason and that there are no unresolved complaints or formal charges filed against the applicant with any licensing board.

2. Submits an application as prescribed by section 32-2912.

3. The licensee for whom the applicant for registration under this section is substituting or assisting provides the board with a written request for the applicant's registration.

4. Submits the fees required under section 32-2914.

B. The board may authorize the applicant to provide locum tenens services if it is satisfied that the applicant has met the requirements of subsection A of this section.

C. Locum tenens registration granted under this section is valid for thirty days. The board may extend registration for an additional thirty days on written request by the person who made the original request for registration. This request shall explain why the extension is necessary and shall include prescribed fees and other information requested by the board.

Article 3 Regulation

§ 32-2931 Violations; classification

A. The following acts are class 5 felonies:

1. Practicing medicine as a homeopathic doctor or homeopathic practitioner pursuant to this chapter without being licensed or exempt from licensure pursuant to this chapter.

2. Securing a license to engage in the practice of homeopathic medicine pursuant to this chapter by fraud or deceit.

3. Impersonating a member of the board.

B. The following acts are class 2 misdemeanors:

1. Using the designation "doctor of homeopathy", "homeopathic doctor", "medical doctor-homeopathic", "doctor of osteopathic medicine (homeopathic)", "homeopathic practitioner" or "homeopathic physician" without being licensed pursuant to this chapter.

2. Using any words, initials or symbols that lead the public to believe that a person is licensed to engage in the practice of homeopathic medicine in this state if this is not true.

§ 32-2932 Use of title or abbreviation by licensees

A. A person who is licensed pursuant to section 32-2912, subsection A may use the designation and sign the licensee's name, wherever required, in any capacity, as "homeopathic doctor", "homeopathic physician". If the licensee is a graduate of a board-approved allopathic school of medicine, the licensee may also use the designation "medical doctor (homeopathic)". If the licensee is a graduate of a board-approved osteopathic school of medicine, the licensee may also use the designation "doctor of osteopathic medicine (homeopathic)".

B. A person who is licensed pursuant to section 32-2912, subsection B may use the designation "homeopathic practitioner", "doctor of homeopathy" or "homeopathic doctor". A person may use the designation "homeopathic doctor" or "doctor of homeopathy" only if the person holds a doctorate and is licensed pursuant to chapter 8, 14, 19 or 39 of this title.

C. The board may adopt in rule abbreviations for the titles listed in subsections A and B of this section.

§ 32-2933 Definition of unprofessional conduct

A. In this chapter, unless the context otherwise requires, "unprofessional conduct" includes the following acts, whether occurring in this state or elsewhere:

1. Performing an invasive surgical procedure that is not specifically allowed by this chapter or by board rules or pursuant to a license issued under chapter 13 or 17 of this title.

2. Wilfully betraying a professional secret or wilfully violating a privileged communication except as either of these may otherwise be required by law. This paragraph does not prevent members of the board from the full and free exchange of information with the licensing and disciplinary boards of other states, territories or districts of the United States or with foreign countries or with the Arizona homeopathic and integrative medical association or any of its component organizations or with the homeopathic medical organizations of other states, counties, districts or territories or with those of foreign countries.

3. Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by any court of competent jurisdiction or a plea of no contest is deemed conclusive evidence of guilt.

4. Exhibiting habitual intemperance in the use of alcohol or habitual substance abuse.

5. Violating federal, state, county or municipal laws or regulations applicable to the practice of medicine or relating to public health.

6. Prescribing a controlled substance for other than accepted therapeutic purposes.

7. Committing conduct that the board determines is gross professional negligence, repeated professional negligence or any negligence that causes the death of a patient.

8. Impersonating another person licensed pursuant to this chapter.

9. Acting or assuming to act as a member of the board if this is not true.

10. Procuring or attempting to procure a license to practice homeopathic medicine by fraud, by misrepresentation or by knowingly taking advantage of the mistake of another.

11. Having professional connection with or lending one's name to an illegal practitioner of homeopathic medicine or of any of the other healing arts.

12. Representing that a manifestly incurable disease, injury, ailment or infirmity can be permanently cured or that a curable disease, injury, ailment or infirmity can be cured within a stated time if this is not true.

13. Offering, undertaking or agreeing to cure or treat a disease, injury, ailment or infirmity by a secret means, method, device or instrumentality.

14. Refusing to divulge to the board on demand the means, method, device or instrumentality used in treating a disease, injury, ailment or infirmity.

15. Giving or receiving or aiding or abetting the giving or receiving of rebates, either directly or indirectly.

16. Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of homeopathic medicine except as the same may be necessary for accepted therapeutic purposes.

17. Exhibiting immorality or misconduct that tends to discredit the profession.

18. Being disciplined by another regulatory jurisdiction because of the licensee's mental or physical inability to engage safely in the practice of medicine, medical incompetence or unprofessional conduct as defined by that jurisdiction and that corresponds directly or indirectly with an act of unprofessional conduct prescribed by this section. The disciplinary action may include refusing, denying, revoking or suspending a license, issuing a formal reprimand, issuing a decree of censure or otherwise limiting, restricting or monitoring the licensee or placing the licensee on probation.

19. Committing any conduct or practice contrary to recognized standards of ethics of the homeopathic medicine profession, any conduct or practice that does or might constitute a danger to the health, welfare or safety of the patient or the public or any conduct, practice or condition that does or might impair the ability to practice homeopathic medicine safely and skillfully.

20. Failing or refusing to maintain adequate records on a patient or to make patient records promptly available to another licensee on request and receipt of proper authorization.

21. Advertising in a false, deceptive or misleading manner.

22. Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate this chapter or any board rule.

23. Using a controlled substance unless it is prescribed by a physician for use during a prescribed course of treatment.

24. Prescribing, dispensing or administering anabolic androgenic steroids for other than therapeutic purposes.

25. Prescribing or dispensing controlled substances to members of the licensee's immediate family.

26. Prescribing, dispensing or administering schedule II controlled substances as prescribed by section 36-2513 or the rules adopted pursuant to section 36-2513, including amphetamines and similar schedule II sympathomimetic drugs in treating exogenous obesity for a period in excess of thirty days in any one year, or the nontherapeutic use of injectable amphetamines.

27. Dispensing a schedule II controlled substance that is an opioid.

28. Using experimental forms of diagnosis and treatment without adequate informed patient consent, without a board-approved written disclosure that the form of diagnosis and treatment to be used is experimental and without conforming to generally accepted experimental criteria, including protocols, detailed records, periodic analysis of results and periodic review by a peer review committee.

29. Engaging in sexual intimacies with a patient.

30. Using the designation "M.D." or "D.O." in a way that would lead the public to believe that a person is licensed by the Arizona medical board or the Arizona board of osteopathic examiners in medicine and surgery in this state if this is not the case.

31. Falsely or fraudulently representing or holding oneself out as being a homeopathic medical specialist.

32. Failing to dispense drugs and devices in compliance with article 4 of this chapter.

33. Violating a formal board order, terms of probation or a stipulation issued or entered into by the board or its designee under this chapter.

34. Charging a fee for services not rendered or charging and collecting a clearly unreasonable fee. In determining the reasonableness of the fee, the board shall consider the fee customarily charged in this state for similar services in relation to modifying factors such as the time required, the complexity of the service and the skill required to perform the service properly. This paragraph does not apply if there is a clearly written contract for a fixed fee between the licensee and the patient that is entered into before the licensee provides the service.

35. Failing to appropriately direct, collaborate with or supervise a licensed, certified or registered health care provider, a homeopathic medical assistant or office personnel employed or assigned to the licensee to assist in the medical care of patients.

36. Knowingly making a false or misleading statement on a form required by the board or in written correspondence with the board.

37. Failing to furnish legally requested information in a timely manner to the board or its investigators or representatives.

38. Failing to allow properly authorized board personnel to examine or have access to a licensee's documents, reports or records that relate to the licensee's medical practice or medically related activities.

39. Signing a blank, undated or predated prescription form.

40. Refusing to submit to a body fluid examination required under section 32-2941 or pursuant to a board investigation into the licensee's substance abuse.

41. Prescribing, dispensing or furnishing a prescription medication or a prescription-only device as defined in section 32-1901 to a person unless the licensee first conducts a comprehensive physical or mental health status examination of that person or has previously established a doctor-patient relationship. This paragraph does not apply to:

(a) A licensee who provides temporary patient supervision on behalf of the patient's regular treating licensed health care professional.

(b) Emergency medical situations as defined in section 41-1831.

(c) Prescriptions written to prepare a patient for a medical examination.

(d) Prescriptions written or prescription medications issued for use by a county or tribal public health department for immunization programs or emergency treatment or in response to an infectious disease investigation, a public health emergency, an infectious disease outbreak or an act of bioterrorism. For the purposes of this subdivision, "bioterrorism" has the same meaning prescribed in section 36-781.

42. Failing to obtain from a patient before an examination or treatment a signed informed consent that includes language that makes it clear the licensee is providing homeopathic medical treatment instead of or in addition to standard conventional allopathic or osteopathic treatment.

B. If a person is licensed pursuant to section 32-2912, subsection B, unprofessional conduct also includes the following:

1. Performing an invasive procedure, including performing intravenous therapy, drawing bodily fluids or ordering genetic testing.

2. Prescribing, dispensing or administering any controlled substance.

3. Prescribing, dispensing or administering a prescription drug.

4. Using the title "physician", "medical doctor-homeopathic", "doctor of osteopathic medicine-homeopathic", "doctor of medicine (homeopathic)" or "homeopathic physician" or otherwise implying that the licensee is a licensed allopathic or osteopathic physician.

5. Failing to correct a known misunderstanding regarding the licensee's licensure status.

6. Failing to obtain from a patient before an examination or treatment a signed informed consent that includes language that makes it clear the licensee is not an allopathic or osteopathic physician and is providing homeopathic treatment under the limited scope of practice of homeopathic medicine pursuant to this chapter.

7. Failing to consult with or refer patients to other health care providers when appropriate.

8. Discontinuing or advising a patient to discontinue a physician's treatment or medicine without first consulting the prescribing or treating physician.

9. Failing to refer a patient with a life-threatening illness to a licensed allopathic or osteopathic physician currently practicing homeopathic, allopathic or osteopathic medicine.

§ 32-2934 Grounds for suspension or revocation of license; duty to report; unprofessional conduct hearing; decision of board

A. The board on its own motion may investigate any evidence that appears to show that a licensee is or may be medically incompetent, guilty of unprofessional conduct or mentally or physically unable to engage safely in the practice of homeopathic medicine. Any licensee, the Arizona homeopathic and integrative medical association or any health care institution as defined in section 36-401 shall, and any other person may, report to the board any information the person may have that appears to show that a licensee is or may be medically incompetent, guilty of unprofessional conduct or mentally or physically unable to engage safely in the practice of homeopathic medicine. The board shall notify the licensee about whom information is received as to the content of the information within one hundred twenty days after receipt of the information. Any person who reports or provides information to the board in good faith is not subject to an action for civil damages as a result of reporting or providing the information. The board may not open an investigation if identifying information regarding the complainant is not provided to the board. It is an act of unprofessional conduct for any licensee to fail to report as required by this section. Any health care institution that fails to report as required by this section shall be reported by the board to the institution's licensing agency.

B. If a complainant wishes to have the complainant's identifying information withheld from the licensee against whom the allegation of unprofessional conduct is being made, the board shall enter into a written agreement with the complainant stating that the complainant's identifying information will not be provided to the licensee against whom the allegation of unprofessional conduct is being made to the extent consistent with the administrative appeals process. The board shall post this policy on the board's website where a person would submit a complaint online.

C. A health care institution shall inform the board if the privileges of a licensee to practice in the health care institution are denied, revoked, suspended or limited because of actions by the licensee that jeopardized patient health and welfare or if the licensee resigns during pending proceedings for revocation, suspension or limitation of privileges. A report to the board pursuant to this subsection shall contain a general statement of the reasons the health care institution denied or took action to revoke, suspend or limit a licensee's privileges.

D. The board may conduct investigations necessary to fully inform itself with respect to any evidence filed with the board under subsection A of this section. As part of this investigation, the board may require the licensee under investigation to be interviewed by board representatives or, at the licensee's expense, to undergo any combination of mental, physical, oral or written medical competency examinations.

E. If the information gathered under subsections A and C of this section indicates that the protection of public health requires that the board take emergency action, the board may order the summary suspension of a license pending the outcome of a formal disciplinary hearing pursuant to title 41, chapter 6, article 10. The board shall serve the suspended licensee with a written notice of the specific charges and the time and place of the formal hearing. The board shall hold this hearing within sixty days after the suspension unless the board for good reason shown by the licensee grants an extension on the hearing date.

F. If, after completing its investigation, the board finds that the information provided pursuant to subsection A of this section is not of sufficient seriousness to merit direct action against the license, it may take any of the following actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. File a letter of concern.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

G. If after completing its initial investigation under subsection A of this section the board determines that rehabilitative or disciplinary action can be taken without the presence of the licensee at an informal interview, the board and the licensee may enter into a stipulated agreement to limit or restrict the licensee's practice or to rehabilitate the licensee, protect the public and ensure the licensee's ability to safely engage in the practice of homeopathic medicine.

H. If after completing its investigation the board believes that this information is or may be true, the board may request an informal interview with the licensee. If the licensee refuses the invitation or accepts the invitation and the results of the interview indicate that suspension or revocation of the license may be in order, the board shall issue a formal complaint and conduct a formal hearing pursuant to title 41, chapter 6, article 10. If after completing the informal interview the board finds that the information provided under subsection A of this section is not of sufficient seriousness to merit suspension or revocation of the license, it may take the following actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. File a letter of concern.

3. Issue a decree of censure. A decree of censure constitutes an official action against the license and may include a requirement for restitution of fees to a patient resulting from violations of this chapter or board rules.

4. Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the licensee. The probation, if deemed necessary, may include temporary suspension of the license for not more than twelve months, restriction of the license to practice homeopathic medicine or a requirement for restitution of fees to a patient resulting from violations of this chapter or board rules. If a licensee fails to comply with the terms of probation, the board may file a summons, complaint and notice of hearing pursuant to title 41, chapter 6, article 10 based on the information considered by the board at the informal interview and any other acts or conduct alleged to be in violation of this chapter or board rules.

5. Enter into an agreement with the licensee to restrict or limit the licensee's practice or medical activities in order to rehabilitate the licensee, protect the public and ensure the licensee's ability to safely engage in the practice of homeopathic medicine.

6. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

I. In an informal interview or a formal hearing the board, in addition to any other action that it may take, may impose an administrative penalty in an amount of at least $500 but not more than $2,000 on a licensee who violates this chapter or a board rule. Actions to enforce the collection of these penalties shall be brought in the name of this state by the attorney general or the county attorney in the justice court or the superior court in the county in which the violation occurred. Penalties imposed under this section are in addition to and not in limitation of other penalties imposed pursuant to this chapter.

J. If in the opinion of the board it appears that the allegations concerning a licensee are of a magnitude as to warrant suspension or revocation of the license, the board shall serve on the licensee a summons and a complaint fully setting forth the conduct or inability concerned and setting a date, time and place for a hearing pursuant to title 41, chapter 6, article 10 to be held before the board at least sixty days after the date of the notice.

K. A licensee who wishes to be present at the hearing in person or by representation, or both, shall file a verified answer with the board within twenty days after receiving service of the summons and complaint. The licensee may present witnesses at this hearing. A licensee who has been notified of a complaint pursuant to this section shall file with the board a written response not more than twenty days after service of the complaint and the notice of hearing. If the licensee fails to file an answer in writing, it is deemed an admission of the act or acts charged in the complaint and notice of hearing and the board may take disciplinary action pursuant to this chapter without a hearing.

L. The board shall issue subpoenas for witnesses as it may need and for witnesses as the licensee may request. Any person refusing to obey a subpoena shall be certified by the board to the superior court in the county in which service was made, and the court may institute proceedings for contempt of court.

M. Service of the summons and complaint shall be as required in civil cases.

N. Service of subpoenas for witnesses shall be as provided by law for the service of subpoenas generally.

O. A licensee who after a hearing is found to be guilty of unprofessional conduct or is found to be mentally or physically unable to engage safely in the practice of homeopathic medicine is subject to any combination of censure, probation or suspension of license or revocation of the license for a prescribed period of time or permanently and under conditions that the board deems appropriate for the protection of the public health and safety and just in the circumstances.

P. If the board acts to modify any licensee's prescription writing privileges, it shall immediately notify the Arizona state board of pharmacy of the modification.

Q. Notwithstanding section 32-2906, subsection A, the board shall deposit, pursuant to sections 35-146 and 35-147, all monies collected from administrative penalties paid pursuant to this section in the state general fund.

R. A letter of concern is a nondisciplinary public document that the board may use in future disciplinary actions.

§ 32-2935 Right to examine and copy evidence; summoning witnesses and documents; taking testimony; right to counsel; court aid; process

A. In connection with the investigation by the board on its own motion or as the result of information received pursuant to section 32-2934, subsection A, the board or its authorized agents or employees shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documents, reports, records or any other physical evidence of any person being investigated, or the reports, records and any other documents maintained by and in possession of any hospital, clinic, office, laboratory, pharmacy or any other public or private agency, and any health care institution as defined in section 36-401, if these documents, reports, records or evidence relate to medical competence, unprofessional conduct or the mental or physical ability of a licensee to practice homeopathic medicine safely.

B. For the purpose of all investigations and proceedings conducted by the board:

1. The board on its own initiative, or on application of any person involved in the investigation, may issue subpoenas compelling the attendance and testimony of witnesses, or demanding the production for examination or copying of documents or any other physical evidence if the evidence relates to medical competence, unprofessional conduct or the mental or physical ability of a licensee to practice homeopathic medicine safely. Within five days after the service of a subpoena on any person requiring the production of any evidence in that person's possession or under that person's control, the person may petition the board to revoke, limit or modify the subpoena. The board shall revoke, limit or modify the subpoena if in its opinion the evidence required does not relate to unlawful practices covered by this chapter, is not relevant to the charge that is the subject matter of the hearing or investigation or does not describe with sufficient particularity the physical evidence whose production is required. Any member of the board or any agent designated by the board may administer oaths or affirmations, examine witnesses and receive evidence.

2. Any person appearing before the board has the right to be represented by counsel.

C. The superior court, on application by the board or by the person subpoenaed, may issue an order:

1. Requiring the person to appear before the board or the duly authorized agent to produce evidence relating to the matter under investigation. Any failure to obey the order of the court may be punished by the court as a contempt.

2. Revoking, limiting or modifying the subpoena if in the court's opinion the evidence demanded does not relate to unlawful practices covered by this chapter, is not relevant to the charge that is the subject matter of the hearing or investigation, or does not describe with sufficient particularity the evidence whose production is required.

D. Patient records, including clinical records, medical reports, laboratory statements and reports, any file, film, any other report or oral statement relating to diagnostic findings or treatment of patients, any information from which a patient or the patient's family might be identified or information received and records kept by the board as a result of investigation procedures are not available to the public.

E. This section or any other provision of law making communications between a licensee and a patient a privileged communication does not apply to investigations or proceedings conducted pursuant to this chapter. The board and its employees, agents and representatives shall keep in confidence the names of any patients whose records are reviewed during the course of investigations and proceedings pursuant to this chapter.

F. Hospital records, medical staff records, medical staff review committee records and testimony concerning these records, and proceedings related to the creation of these records, are not available to the public, shall be kept confidential by the board and are subject to the same provisions concerning discovery and use in legal actions as are the original records in the possession and control of hospitals, their medical staffs and their medical staff review committees. The board shall use records and testimony during the course of investigations and proceedings pursuant to this chapter.

§ 32-2936 Patient records

A licensee must keep a patient's medical records as follows:

1. If the patient is an adult, for at least seven years after the last date the licensee provided the patient with medical or health care services.

2. If the patient is a child, either for at least three years after the child's eighteenth birthday or for at least seven years after the last date the licensee provided that patient with medical or health care services, whichever date occurs first.

3. If the patient dies before the expiration of the dates prescribed in paragraph 1 or 2, for at least three years after the patient's death.

§ 32-2937 Judicial review

Except as provided in section 41-1092.08, subsection H, judicial review of license suspension or revocation is available pursuant to title 12, chapter 7, article 6.

§ 32-2939 Medical assistants

This chapter does not prevent a medical assistant from assisting a licensee pursuant to rules adopted by the board.

§ 32-2940 Injunctive relief

A. In addition to all other available remedies, if the board has any reason to believe that a person has violated this chapter or a board rule, the board through the attorney general or the county attorney may apply to the superior court in Maricopa county for an injunction restraining that person from engaging in the violation. It is not necessary for the board to show damage or injury. It is sufficient for the board to charge that the respondent on a certain day in a named county committed the violation.

B. The court shall grant a temporary restraining order, a preliminary injunction or a permanent injunction without bond.

C. The board may serve the defendant in any county of this state where the defendant is found.

§ 32-2941 Substance abuse and treatment rehabilitation program; private contract; funding

A. The board may establish a program for the treatment and rehabilitation of licensees who are impaired by alcohol or substance abuse. This program shall include education, intervention, therapeutic treatment and posttreatment monitoring and support.

B. The board may contract with other organizations to operate the program. A contract with a private organization shall include the following requirements:

1. Periodic reports to the board regarding treatment program activity.

2. Release of all treatment records to the board on demand.

3. Quarterly reports to the board regarding each licensee's diagnosis and prognosis and recommendations for continuing care, treatment and supervision.

4. Immediate reporting to the board of the name of an impaired licensee who the treating organization believes is misusing chemical substances.

5. Reports to the board as soon as possible of the name of the licensee who refuses to submit to treatment or whose impairment is not substantially alleviated through treatment.

C. A licensee who is impaired by alcohol or substance abuse shall agree to enter into a stipulation order with the board. The board shall place the licensee on probation if the licensee refuses to do so.

D. The board may charge the board's costs relating to the licensee's participation in the program to that licensee.

E. The board shall summarily suspend a license pursuant to section 32-2934 if the licensee continues or resumes alcohol or substance abuse after a board stipulation or probationary order that is no longer in effect. After this suspension the board may delay license revocation or other disciplinary actions if the licensee attends a treatment program pursuant to this section. Within ninety days after the licensee completes this program the board shall schedule formal proceedings for licensure revocation or other disciplinary action.

§ 32-2942 Mental, behavioral and physical health evaluation and treatment program; confidential consent agreement; private contract; immunity

A. The board may establish a confidential program for the evaluation, treatment and monitoring of persons who are licensed pursuant to this chapter and who have a medical, psychiatric, psychological or behavioral health disorder that may impact the ability to safely practice medicine or perform health care tasks. The program shall include education, intervention, therapeutic treatment and posttreatment monitoring and support.

B. A licensee who has a medical, psychiatric, psychological or behavioral health disorder described in subsection A of this section and who has not committed a violation of this chapter may agree to enter into a confidential consent agreement with the board for participation in a program established pursuant to this section if the licensee either:

1. Voluntarily reports that disorder to the board.

2. Is reported to the board by a peer review committee, hospital medical staff member, health plan or other health care practitioner or health care entity.

C. The board may contract with a private organization to operate a program established pursuant to this section. The contract shall require that the private organization do all of the following:

1. Periodically report to the board regarding treatment program activity.

2. Release all treatment records to the board on demand.

3. Immediately report to the board the name of a licensee who the treating organization believes is incapable of safely practicing medicine or performing health care tasks.

D. An evaluator, teacher, supervisor or volunteer in a program established pursuant to this section who acts in good faith within the scope of that program is not subject to civil liability, including malpractice liability, for the actions of a licensee who is participating in the program pursuant to this section.

§ 32-2943 Complaints; statute of limitations

The board may not act on its own motion or on any complaint received by the board in which an allegation of unprofessional conduct or any other violation of this chapter against a professional who holds an Arizona license occurred more than four years before the complaint is received by the board. This time limitation does not apply to:

1. Medical malpractice settlements or judgments or allegations of sexual misconduct or if an incident or occurrence involved a felony, diversion of a controlled substance or impairment while practicing by the licensee.

2. A board's consideration of the specific unprofessional conduct related to a licensee's failure to disclose conduct or a violation as required by law.

Article 4 Dispensing of Drugs and Devices

§ 32-2951 Dispensing drugs and devices; conditions; exception; civil penalty; definition

A. Except as provided in subsection C of this section, a person who is licensed pursuant to section 32-2912, subsection A may dispense drugs and devices kept by the licensee, including:

1. Controlled substances.

2. Prescription-only drugs.

3. Homeopathic medications.

4. Nonprescription drugs.

B. A person who is licensed pursuant to section 32-2912, subsection A may dispense drugs and devices under subsection A of this section if:

1. The licensee includes the following information on the label of each controlled substance and prescription-only drug and on the label or accompanying instruction sheets of each homeopathic medication or nonprescription drug:

(a) The licensee's name, address and telephone number.

(b) The date the drug is dispensed.

(c) The patient's name.

(d) The name and strength of the drug, the quantity dispensed, directions for its use and any cautionary statements.

(e) The number of authorized refills.

2. The licensee enters into the patient's medical record the name, strength and potency of the drug dispensed, the date the drug is dispensed, the dosing schedule, the number of refills and the therapeutic reason.

3. The licensee keeps all controlled substances in a locked cabinet or room, controls access to the cabinet or room by a written procedure and maintains an ongoing inventory of its contents.

4. The licensee pays a permit fee prescribed under section 32-2914.

C. A person who is licensed pursuant to section 32-2912, subsection A may not dispense a schedule II controlled substance that is an opioid, except for an opioid that is for medication-assisted treatment for substance use disorders.

D. Except in an emergency situation, a licensee who dispenses drugs for a profit without being registered by the board to do so is subject to a civil penalty by the board of not less than three hundred dollars and not more than one thousand dollars for each transaction and is prohibited from further dispensing for a period of time as prescribed by the board.

E. Before a licensee dispenses a controlled substance or a prescription-only pharmaceutical drug pursuant to subsection B of this section, the licensee shall give the patient a written prescription on which appears the following statement in bold type: "This prescription may be filled by the prescribing physician or by a pharmacy of your choice."

F. The licensee shall include the following information on a prescription order:

1. The date it is issued.

2. The patient's name and address.

3. The name, strength and quantity of the drug.

4. Two signature lines for the licensee. The right side of the prescription form under the signature line shall contain the phrase "substitution permissible" and the left side under the signature line shall contain the phrase "dispense as written".

5. The dispensing licensee's United States drug enforcement agency number for controlled substances.

6. The date and the printed name and signature of the person who prepares, counts or measures the drug, labels the container or distributes a prepackaged drug to the patient or the patient's representative.

G. Before the licensee dispenses a homeopathic medication, including a prescription-only homeopathic medication or a nonprescription drug, the licensee shall give the patient a written statement on which appears the following statement in bold type: "Prescriptions may be filled by this prescribing physician or by a pharmacy of your choice."

H. A person who is licensed pursuant to section 32-2912, subsection A shall dispense controlled substances, except schedule II controlled substances that are opioids, and prescription-only drugs for profit only to the licensee's own patient and only for conditions being treated by that licensee. The licensee shall personally determine the legitimacy or advisability of the drugs dispensed and shall document in writing the licensee's procedures for supervising the role of nurses and attendants in the dispensing process.

I. A person who is licensed pursuant to section 32-2912, subsection B may dispense only those drugs and devices kept by that licensee that are homeopathic medications and nonprescription drugs, including nutritional supplements, and must include the following information on the label or accompanying instruction sheets of each homeopathic medication or nonprescription drug:

1. The dispensing licensee's name, address and telephone number.

2. The date the substance is dispensed.

3. The patient's name.

4. The name and strength of the substance, the quantity dispensed, directions for its use and any cautionary statements.

J. A licensee who dispenses drugs and devices pursuant to subsection I of this section must enter into the patient's medical record the name, strength and potency of the substance dispensed, the date the substance is dispensed, the dosing schedule and the therapeutic reason.

K. A person who is licensed pursuant to section 32-2912, subsection B may not dispense controlled substances or prescription-only substances.

L. This section shall be enforced by the board, which shall establish rules regarding labeling, recordkeeping, storage and packaging of drugs that are consistent with the requirements of chapter 18 of this title. The board may conduct periodic inspections of dispensing practices to ensure compliance with this section and applicable rules.

M. For the purposes of this section, "dispense" means the delivery by a licensee of a drug or device to a patient, except for samples packaged for individual use by licensed manufacturers or repackagers of drugs, and includes the prescribing, administering, packaging, labeling and security necessary to prepare and safeguard the drug or device for delivery.

Chapter 30 Private Postsecondary Education

Article 1 General Provisions

§ 32-3001 Definitions

In this chapter, unless the context otherwise requires:

1. "Accredited" means accredited by an accrediting agency recognized by the United States department of education.

2. "Board" means the state board for private postsecondary education.

3. "Degree" means an academic degree or honorary degree or the title of any designation, mark, appellation, series of letters or words including associate, bachelor, master, doctor or fellow which signifies, purports to signify or is generally taken to signify satisfactory completion of the requirements of an educational program of study beyond the secondary school level or which is an honorary title conferred for recognition of some meritorious achievement.

4. "Grant" means award, bestow, confer, convey or sell.

5. "Operate" means to establish, keep, maintain or utilize a physical facility, location or mailing address in this state where, from which or through which students are procured for private vocational or private degree programs, private vocational or private degree programs are offered or private vocational credentials or private degrees are offered or granted and includes contracting for the performance of any of these acts.

6. "Private vocational program" means an instructional program which includes a course or group of courses as defined in section 15-101 for which a student does not earn a degree and which is designed to provide or is advertised as providing a student with sufficient skills for entry into a paid occupation, and which is not conducted solely by a public school, public community college or public university.

§ 32-3002 State board for private postsecondary education; committees

A. A state board for private postsecondary education is established consisting of the following seven members appointed by the governor pursuant to section 38-211:

1. Two members who hold executive or managerial positions in a private educational institution offering private vocational programs in this state.

2. One member who holds an executive or managerial position in a private educational institution offering an associate degree.

3. Two members who hold executive or managerial positions in a private educational institution offering a baccalaureate or higher degree, or both.

4. Two members who are citizens of this state and have been occupied in commerce or industry in this state for at least three years.

B. Board members serve at the pleasure of the governor. Terms of office of board members are four years to begin and end on the third Monday in January unless removed by the governor. The governor shall appoint a member for the unexpired portion of a term to fill a vacancy occurring during a term of office.

C. Four board members constitute a quorum for the transaction of business. The vote of a majority of the board members transacting business constitutes authority for the board to act.

D. Members of the board are eligible to receive compensation as determined pursuant to section 38-611 or fifty dollars, whichever is more, for each day actually spent in the performance of their duties and reimbursement for all expenses necessary and properly incurred in attending meetings or hearings of the board.

E. Members, employees, committee members and agents of the board and members of citizen advisory committees are immune from personal liability with respect to acts done and actions taken in good faith without wanton disregard of their statutory duties pursuant to this chapter.

F. The chairman may establish committees from the board membership necessary to carry out the functions of the board.

§ 32-3003 Powers and duties

A. The board shall:

1. Annually select a chairman from among its members.

2. Meet at least four times a year.

3. Adopt rules which are necessary or proper for the administration of this chapter.

4. Administer and enforce this chapter and rules adopted pursuant to this chapter.

5. Establish minimum standards for private vocational program licensure requirements.

6. Adopt an official seal for attestation of licenses or other official papers and documents.

7. Consider and pass upon applications for private vocational program licenses and licenses to grant degrees.

8. Hear and pass upon complaints or charges.

9. Compel attendance of witnesses, administer oaths and take testimony concerning all matters coming within its jurisdiction.

10. Keep a record of its proceedings.

11. Keep a register which shows the date of each application for a private vocational program license, qualifications and place of business of the applicant and disposition of the application.

12. Keep a register which shows the date of each application for a license to grant degrees, qualifications and place of business of the applicant and disposition of the application.

13. Maintain a list of institutions licensed pursuant to this chapter which is open to public inspection at all reasonable times. The board shall give a copy of the list to any person who requests it.

14. Engage in a full exchange of information with other regulatory boards, governmental agencies, accrediting agencies and the United States department of education.

15. Do other things necessary to carry out the purposes of this chapter.

B. The board may:

1. Subject to title 41, chapter 4, article 4, employ personnel it deems necessary to carry out the purposes of this chapter and designate their duties. These duties may include considering and passing on license applications, considering and passing on complaints or charges, making investigations, compelling attendance of witnesses and issuing official papers and documents.

2. Make investigations, hold hearings and make decisions to enforce this chapter.

3. Issue subpoenas to compel the attendance of witnesses and the production of documents and administer oaths, take testimony, hear proof and receive exhibits in evidence.

4. Accept and spend federal monies and private grants, gifts, contributions and devises to assist in carrying out the purposes of this chapter. These monies do not revert to the state general fund at the end of a fiscal year.

5. Enter into an intergovernmental agreement pursuant to section 15-1747 to manage private postsecondary institutions in this state subject to the terms of the reciprocity agreement.

§ 32-3004 Board for private postsecondary education fund

(L24, Ch. 222, sec. 39. Eff. until 7/1/28)

A. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all fees or other revenues received by the board in the state general fund and deposit the remaining eighty-five percent in the board for private postsecondary education fund.

B. Monies deposited in the board for private postsecondary education fund are subject to section 35-143.01.

§ 32-3004 (Version 2) Board for private postsecondary education fund

(L24, Ch. 222, sec. 40. Eff. 7/1/28)

A. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all fees or other revenues received by the board in the state general fund and deposit the remaining ninety percent in the board for private postsecondary education fund.

B. Monies deposited in the board for private postsecondary education fund are subject to section 35-143.01.

Article 2 Licensure

§ 32-3021 Private vocational program license; qualifications; provision of information; exemptions

A. A person shall not operate a private vocational program unless the person holds a private vocational program license issued pursuant to this chapter. Each program offered by a private vocational program licensee shall be authorized on a private vocational program license. The board shall prescribe the manner in which the programs are identified on the license.

B. An applicant for a private vocational program license shall meet all of the following requirements:

1. Furnish a letter of credit, surety bond or cash deposit as provided in section 32-3023.

2. Make specific information concerning educational programs, including statements of purpose, objectives, course of study, policies, fees and other pertinent information, available to prospective students and the general public.

3. Be financially responsible and have management capability.

4. Maintain a qualified faculty.

5. Maintain facilities, equipment and materials that are appropriate for the stated program. All facilities shall meet applicable state and local health and safety laws.

6. Maintain appropriate records as the board prescribes that are properly safeguarded and preserved.

7. Use only advertisements that are consistent with the information made available as provided in paragraph 2 of this subsection.

8. Provide courses of instruction that meet stated objectives.

9. Provide a grievance procedure for students.

10. Comply with all federal and state laws relating to the operation of a private postsecondary educational institution.

11. Other requirements the board deems necessary.

C. An applicant for a private vocational program license shall submit evidence of meeting the requirements prescribed in subsection B of this section to the board. The board shall verify the evidence submitted. Verification shall include on-site verification.

D. The filing of an application grants the board the authority to obtain information from any of the following:

1. A licensing board or agency in any state, district, territory or county of the United States or any foreign country.

2. The Arizona criminal justice information system as defined in section 41-1750.

3. The federal bureau of investigation.

E. The board, on application, may issue a private vocational program license to a new educational institution as provided in this section, except that the board shall establish separate minimum standards for licensure requirements of new educational institutions. These minimum standards may include the modification of licensure requirements as provided in subsection B, paragraphs 3, 5, 6, 7 and 8 of this section to meet the circumstances of new educational institutions. The board, on application, may issue a private vocational program license to an educational institution that is otherwise exempt under subsection F of this section. The board shall monitor the new educational institution to ensure compliance with the licensure requirements. The board shall issue a private vocational program license as provided in this subsection one time only to new educational institutions.

F. This section does not apply to any of the following:

1. A school licensed pursuant to chapter 5 of this title.

2. An instructional program or course sponsored by a bona fide trade association solely for its members.

3. Privately owned academic schools engaged in the process of general education that is designed to produce a level of development equivalent to that necessary to meet the requirements for entrance into a public community college or public university in this state and that may incidentally offer technical and vocational courses as part of the curriculum.

4. Schools or private instruction conducted by any person engaged in training, tutoring or teaching individuals or groups, if the instruction is related to hobbies, avocations, academic improvement or recreation and may only incidentally lead to gainful employment.

5. Schools conducted by any person solely for training the person's own employees.

6. An instructional program or course offered solely for employees and for the purpose of improving the employees in their employment if both of the following apply:

(a) The employee is not charged a fee.

(b) The employer provides or funds the program or course pursuant to a valid written contract between the employer and a program or course provider.

7. Training conducted pursuant to 14 Code of Federal Regulations part 141.

8. A school that solely provides an instructional program for certified nursing assistants and licensed nursing assistants and that is licensed by the nursing board pursuant to section 32-1606, subsection B, paragraph 11.

9. A professional driving training school licensed by the department of transportation pursuant to chapter 23, articles 1, 2 and 3 of this title.

10. A training program approved by the board of examiners of nursing care institution administrators and assisted living facility managers that solely provides training for managers and caregivers of assisted living facilities.

11. A yoga teacher training course or program or a yoga instructional course or program.

12. A private instructional program or course that is less than forty contact hours in length and that charges a fee of less than $1,000. For the purposes of this paragraph, "contact hour" means a fifty-minute session of scheduled in-class or online instruction.

§ 32-3022 License to grant degrees

A. A person doing business for profit or not for profit in this state, except a public community college or public university, shall not grant or offer to grant a degree to any person or operate an institution which grants or offers to grant a degree to any person unless the person doing business holds a license to grant degrees issued pursuant to this chapter. Each degree program offered by a holder of a license to grant degrees shall be authorized on the license. The board shall prescribe the manner in which the degrees, including level and subject area, shall be identified on the license.

B. An applicant for a license to grant degrees shall have each degree program it offers accredited or have institutional accreditation with an accrediting agency recognized by the United States department of education. The board shall prescribe appropriate evidence of accreditation which each applicant shall submit and the manner in which degree programs shall be identified for institutional accreditation.

C. Notwithstanding subsection B of this section, an applicant for a license to grant degrees who offers a degree program which is not accredited shall meet all of the following requirements:

1. Application or commitment to apply for accreditation with an accrediting agency recognized by the United States department of education. The board shall prescribe the manner in which the applicant shall demonstrate application or commitment to apply for accreditation and the time periods in which the various stages of accreditation shall be met.

2. Demonstration in the manner prescribed by the board, including on-site verification, that the applicant meets the requirements prescribed in section 32-3021, subsections B and C if the applicant has not met the requirements in its application for accreditation.

3. Demonstration in the manner prescribed by the board that the applicant who offers the degree provides actual instruction relating to each degree.

D. The board may, on application, issue a license to grant degrees to a new educational institution as provided in this section, except that the board shall establish separate minimum standards for licensure requirements of new educational institutions. The minimum standards may include the modification of licensure requirements as provided in section 32-3021, subsection B, paragraphs 3, 5, 6, 7 and 8 to meet the circumstances of new educational institutions. The board shall monitor the new educational institution to ensure compliance with the licensure requirements. The board shall issue a license to grant degrees as provided in this subsection one time only to new educational institutions.

E. This section does not apply to religious degrees which are used solely for religious purposes within a religious organization which has tax exempt status from the internal revenue service.

§ 32-3023 Letters of credit, bonds or cash deposits; fund

A. Before granting a private vocational program license or license to grant degrees the board shall require of the applicant a letter of credit, a surety bond in a form acceptable to the board or a cash deposit pursuant to this section if the program or institution is not accredited. Before renewing a private vocational program license or license to grant degrees the board may require of the applicant a letter of credit, a surety bond in a form acceptable to the board or a cash deposit pursuant to this section if the program or institution is not accredited.

B. Before granting or renewing a private vocational program license or license to grant degrees the board may require of the applicant a letter of credit, a surety bond in a form acceptable to the board or a cash deposit pursuant to this section if the program or institution is accredited.

C. The letter of credit, surety bond or deposit required by this section shall not be less than fifteen thousand dollars. The board may require a letter of credit, a bond or a deposit required by this section in an amount of more than fifteen thousand dollars and may consider the following:

1. The applicant's gross tuition revenue.

2. The length of time the applicant has been in operation and the applicant's financial position.

D. Surety bonds shall be executed by the applicant as principal with a corporation authorized to transact surety business in this state. Evidence of a surety bond shall be submitted to the board in a form prescribed by the board. Surety bonds issued by a surety company must be rated "A" or better by Moody's investor service or Standard and Poor's rating service or their successors.

E. As an alternative to a surety bond, the applicant may submit a confirmed, irrevocable letter of credit acceptable and payable to the board.

F. As an alternative to a surety bond, an applicant may establish a cash deposit in the amount of the bond with the state treasurer pursuant to rules adopted by the board. The treasurer shall deposit the monies in a special account to be known as the private postsecondary education cash bond fund. The monies shall be invested by the treasurer pursuant to laws governing such deposits. The accrued interest from investments shall be held by the treasurer for the payment of current claims. Cash deposits plus accrued interest may be withdrawn, if there are no outstanding claims against them, one year after the termination of the license in connection with which the monies are deposited. The deposit may be withdrawn one year after the filing of a surety bond as a replacement to the cash deposit.

G. The letters of credit, bonds or cash deposits required by this section shall be in favor of this state for the benefit of any person covered by this section. The letter of credit, bond or deposit is subject to claims by the board for failure to pay any amount required pursuant to this chapter or by any person who is damaged by the failure of the principal to provide educational services pursuant to its published catalogs, brochures or other publications.

H. A person claiming against the letter of credit, bond or cash deposit may maintain an action against the principal and the surety or depository. The principal's letter of credit, surety bond or deposit may be sued upon in successive actions until the full amount is exhausted. A suit shall not be commenced on the letter of credit, bond or cash deposit after the expiration of one year following the commission or omission of the act on which the suit is based, except that time for purposes of claims for fraud shall be measured pursuant to section 12-543.

I. The letter of credit, bond or deposit shall be continuous in form and shall be conditioned that the total aggregate liability of the letter of credit, surety or depository for all claims shall be limited to the face amount of the letter of credit, bond or deposit irrespective of the number of years the letter of credit, bond or deposit is in force. If a corporate surety desires to make payment without waiting for court action, the amount of any bond filed pursuant to this chapter shall be reduced to the extent of any good faith payments made by the corporate surety. These payments shall be based on priority of written claims received by the corporate surety before court action.

J. On receipt by the board of notice of intent to cancel a bond by a corporate surety, the board shall immediately notify the principal on the bond of the effective date of cancellation and that the principal must furnish a like bond or a letter of credit or make a cash deposit before the cancellation date or within thirty days after mailing of the notice by the board or its license shall be suspended. Notice to the principal shall be by certified mail in a sealed envelope with postage prepaid addressed to the principal's latest address of record in the board's office. A license is automatically suspended on the date the bond is cancelled unless a replacement bond or a letter of credit or cash deposit in lieu of a bond is on file with the board. Operation while the license is suspended is a violation of this chapter. The license shall not be reinstated until a replacement bond, letter of credit or cash deposit is on file with the board.

§ 32-3025 Application for license; nontransferability; display

A. Each applicant for a private vocational program license to grant degrees shall make a verified application to the board upon forms prepared and furnished by the board. Any license issued shall be restricted to vocational programs or degree programs and locations of programs specifically indicated on the application. The holder of a license shall present a supplementary application as may be directed by the board for approval of additional vocational programs or degree programs or locations.

B. Each original application for a license shall be accompanied by the prescribed fee. A supplementary application for the approval of additional vocational programs or degree programs or locations shall be accompanied by the prescribed fee. Fees shall not be refunded if a license is refused or revoked.

C. The board may grant a private vocational program license or license to grant degrees for programs with variable locations. Private vocational program licenses and licenses to grant degrees are not transferable to another location in this state except as specified on the license.

D. A private vocational program license or license to grant degrees shall be prominently displayed at a place on the premises of the educational institution which is open to the inspection of all interested persons.

§ 32-3027 Fees

A. The board shall establish and collect the following nonrefundable fees:

1. A filing fee for any combination of an initial and original private vocational program license or license to grant degrees as follows:

(a) For up to and including five program reviews, $2,000.

(b) For a sixth and subsequent program review, $100 each.

(c) Notwithstanding subdivisions (a) and (b) of this paragraph, the total filing fee may not to exceed $5,000.

2. An annual renewal fee for an applicant holding one or more private vocational program and degree granting licenses, based on the aggregate annual gross tuition revenues from all programs licensed in this state but not exceeding the following amounts for an applicant with the following annual gross tuition revenue:

(a) Less than $50,000 annual gross tuition revenue, $750.

(b) $50,000 to $249,999 annual gross tuition revenue, $975.

(c) $250,000 to $499,999 annual gross tuition revenue, $1,375.

(d) $500,000 to $999,999 annual gross tuition revenue, $1,800.

(e) $1,000,000 to $2,499,999 annual gross tuition revenue, $2,300.

(f) $2,500,000 to $6,999,999 annual gross tuition revenue, $2,750.

(g) $7,000,000 to $9,999,999 annual gross tuition revenue, $3,100.

(h) $10,000,000 to $13,999,999 annual gross tuition revenue, $4,200.

(i) $14,000,000 to $19,999,999 annual gross tuition revenue, $5,000.

(j) $20,000,000 or more annual gross tuition revenue, $6,000.

3. A supplemental application fee for licensure of a new or an additional vocational program or degree program, $500.

4. A supplemental application fee for licensure of an additional location or a change of location, $500.

5. A supplemental application fee for a change in ownership of an educational institution offering private vocational programs or granting degrees, $2,000.

6. A fee for an on-site verification, inspection or investigation that equals the actual cost incurred or $500, whichever is less.

7. A late renewal fee, $100 per day.

B. For a student record request the board may charge a $10 processing fee.

Article 3 Regulation

§ 32-3051 Grounds for disciplinary action

The board may take disciplinary action against any person licensed pursuant to this chapter for any one or a combination of the following reasons:

1. Violation of this chapter or rules adopted pursuant to this chapter.

2. Conviction of a felony or any crime related to the operation of an educational institution.

3. Engaging in fraudulent advertising.

4. Failure to reapply as prescribed by the board for a license issued under this chapter if the licensee is continuing in business.

5. Engaging in false or misleading advertising, solicitation or recruitment practices.

6. Unprofessional or dishonorable conduct by the licensee or any employee, administrator, owner, member, officer, director or agent of the licensee, whether occurring in this state or elsewhere, including:

(a) Engaging in sexual conduct with a student who is not the person's spouse at the time of the conduct. For the purposes of this subdivision, "sexual conduct" means either of the following:

(i) Engaging in or soliciting a sexual relationship, whether consensual or nonconsensual.

(ii) Making sexual advances, requesting sexual favors or engaging in any other verbal or physical contact of a sexual nature.

(b) Verbally abusing a student or employee.

(c) Threatening or intimidating by word or conduct causing physical injury to a student.

(d) Intentionally, knowingly or recklessly causing any physical injury to a student.

(e) Knowingly touching a student with the intent to injure, insult or provoke the student.

7. Failure to comply with all state and federal laws relating to the operation of a private postsecondary educational institution.

8. Failure to comply with applicable standards of accreditation as determined by the board.

9. Failure to be financially responsible as determined by the board.

10. Failure to have adequate management capability as determined by the board.

11. Failure to provide the approved program as determined by the board.

12. Failure to provide faculty who meet the minimum qualifications as determined by the board.

13. Failure to provide the facility, equipment and other resources to operate the program.

14. Failure to follow published administrative policies, procedures and fees of the educational institution.

15. Failure to offer published student services.

16. Failure to maintain records as prescribed by rule.

17. Failure to provide a safe learning environment.

18. Failure to comply with a board order, consent agreement, stipulation, subpoena or investigative request.

§ 32-3052 Types of disciplinary action; definition

A. On its own motion the board may investigate any evidence indicating that any person may be guilty of violating this chapter or rules adopted pursuant to this chapter. Any person may report to the board any information which shows that a person licensed pursuant to this chapter constitutes a threat to the public health, safety and welfare. On a showing of a threat to the public health, safety and welfare, the board, before conducting a hearing pursuant to title 41, chapter 6, article 10, may impose probation requirements best adapted to protect the public health, safety and welfare.

B. On the filing of a sworn complaint with the board charging any person with any reasons for disciplinary action specified in section 32-3051, the board shall conduct an investigation of the complaint. The board may employ investigators to conduct the investigation. Evidence may be taken by deposition or affidavit.

C. A person who reports or provides information to the board in good faith is not subject to an action for civil damages as a result of reporting or providing the information. The name of the person who reported or provided information shall not be disclosed unless disclosure is necessary to the proceedings conducted under this section.

D. The chairman of the board shall appoint a complaint committee consisting of at least three members of the board. The complaint committee is subject to open meeting requirements pursuant to title 38, chapter 3, article 3.1.

E. After the board staff investigates a complaint, the complaint committee shall review the complaint. Based on information provided pursuant to subsection A or B of this section, the complaint committee may do any of the following:

1. Dismiss the complaint if the committee determines the complaint is without merit.

2. File a letter of concern.

3. Refer the complaint to the full board for further review and action.

F. Based on information provided pursuant to subsection A or B of this section, if the board finds that the complaint lacks sufficient seriousness to merit direct action against the licensee, the board may take any of the following actions:

1. Dismiss the complaint if the board believes the information is without merit.

2. File a letter of concern.

3. Enter into an agreement with the licensee to restrict or limit the licensee's activities.

4. Require restitution to a student.

5. Impose a civil penalty in an amount not to exceed one thousand dollars for each violation of this chapter or rules adopted pursuant to this chapter. The board may impose an additional penalty in an amount not to exceed one thousand dollars for each day the civil penalty is not paid, beginning on the day after the penalty has been imposed.

G. Based on information provided pursuant to subsection A or B of this section, if the board finds the complaint has or may have sufficient seriousness to merit direct action against the licensee, the board may request an informal interview with the licensee.

H. The board shall issue a complaint and hold a hearing pursuant to title 41, chapter 6, article 10 if either:

1. The licensee refuses to be interviewed.

2. Pursuant to an interview, the board determines that cause may exist to revoke or suspend the license.

I. Based on the result of the informal interview or hearing, if the board determines that the facts do not warrant revocation or suspension of the license, it may take any of the following actions:

1. Dismiss the complaint if the board finds the information is without merit.

2. File a letter of concern.

3. Issue a decree of censure.

4. Fix a period and terms for probation to protect the public health, safety and welfare. The probation may include a restriction on the license. If a licensee fails to comply with the terms of probation, the board may file a complaint and notice of hearing pursuant to title 41, chapter 6, article 10 and take further disciplinary action.

5. Enter into an agreement with the licensee to restrict or limit the licensee's activities.

6. Require restitution to the student.

7. Impose a civil penalty in an amount not to exceed one thousand dollars for each violation of this chapter or rules adopted pursuant to this chapter. The board may impose an additional penalty in an amount not to exceed one thousand dollars for each day the civil penalty is not paid, beginning on the day after the penalty has been imposed.

J. If the board finds that the information provided pursuant to subsection A or B of this section warrants suspension or revocation of a license, the board shall hold a hearing pursuant to title 41, chapter 6, article 10. Notice of a complaint and hearing is fully effective by mailing a true copy of the notice of complaint and hearing addressed to the licensee's last known address of record in the board's files. Notice is complete at the time of its deposit in the mail.

K. Except as provided in section 41-1092.08, subsection H, a person may appeal a final decision made pursuant to this section to the superior court pursuant to title 12, chapter 7, article 6.

L. If the board determines after a hearing that the licensee has violated this chapter or rules adopted pursuant to this chapter, the board may take any of the following actions:

1. Suspend or revoke the license.

2. Issue an order of censure. For the purposes of this paragraph, an order of censure is an official action against the licensee and may include a requirement for restitution to a student.

3. Place the licensee on probation.

4. Impose a civil penalty in an amount not to exceed one thousand dollars for each violation of this chapter or rules adopted pursuant to this chapter. The board may impose an additional penalty in an amount not to exceed one thousand dollars for each day the civil penalty is not paid, beginning on the day after the penalty has been imposed.

M. On its determination that any person has violated this chapter or rules adopted pursuant to this chapter, the board may assess the person with the board's reasonable costs and expenses, including attorney fees, incurred in conducting the investigation, informal interviews, committee meetings, board meetings or administrative hearings. All monies collected pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the board for private postsecondary education fund established by section 32-3004.

N. All monies derived from the imposition of civil penalties pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

O. For the purposes of this section, "letter of concern" means an advisory letter that notifies the licensee that while there is insufficient evidence to support disciplinary action, the board believes the licensee should modify or eliminate certain activities or practices and that continuation of the activities or practices may result in disciplinary action against the licensee.

§ 32-3053 Persons doing business without a license

The board may make investigations as provided in section 32-3003, subsection B in order to determine whether a person doing business in this state is required to hold a license as prescribed in this chapter. If the board determines that a person is doing business without holding a license required by this chapter, the board may bring an action as provided in section 32-3057.

§ 32-3054 Hearing; rehearing or review; surrender of license

A. In any case involving the refusal to issue or renew a license or disciplinary action, the applicant or licensee may request a hearing or file a motion for rehearing or review pursuant to title 41, chapter 6, article 10.

B. Upon the revocation of a license, the holder shall surrender the license to the board, and upon failure or refusal so to do, the board may seize the license.

§ 32-3055 Judicial review

Except as provided in section 41-1092.08, subsection H, any person affected by a final administrative decision of the board may have the decision reviewed judicially pursuant to title 12, chapter 7, article 6. If the plaintiff in the review proceedings is not a resident of this state, the venue shall be in Maricopa county. Service of summons issued in such review proceedings may be had upon the secretary. The board shall not be required to certify the record of the proceedings unless the plaintiff in the review proceedings first pays to the board the reasonable costs thereof.

§ 32-3056 Violation; classification

A person who violates any provision of this chapter is guilty of a class 3 misdemeanor.

§ 32-3057 Cease and desist order; injunctive relief; civil penalty

A. In addition to all other remedies, if it appears to the board, either on complaint or otherwise, that any person has engaged in or is engaging in an act, practice or transaction which violates this chapter or any rule or order of the board, the board may either:

1. Serve on the person by certified mail or personal service a cease and desist order requiring the person to cease and desist immediately, on receipt of the notice, from engaging in the act, practice or transaction.

2. Apply, through the attorney general or through the county, city or town attorney of the county, city or town in which the act, practice or transaction is alleged to have been committed, to the superior court in that county for an injunction restraining the person from engaging in the act, practice or transaction, or doing anything in furtherance of the act, practice or transaction. On a proper showing, a temporary restraining order, a preliminary injunction or a permanent injunction shall be granted without a bond. Process in the action may be served on the defendant in any county in this state where the defendant transacts business or is found.

B. A person who has received a cease and desist order under subsection A, paragraph 1 of this section shall, upon request, be granted a hearing before the board within thirty days of the effective date of the order.

C. If the person fails to comply with the order, the board shall file an action, pursuant to subsection A, paragraph 2 of this section, in superior court to restrain and enjoin the person from engaging in the act, practice or transaction. The court in the action shall proceed as in other actions for injunction. If the court finds that the person wilfully failed to obey a valid cease and desist order, the court shall impose a civil penalty of not less than two hundred fifty dollars nor more than one thousand dollars per day per violation. Any amount collected as a civil penalty shall be deposited in the state general fund.

D. Each violation of this chapter or a rule or order of the board constitutes a separate offense and the court may impose a civil penalty not to exceed one thousand dollars for each violation. The board may impose an additional penalty in an amount not to exceed one thousand dollars for each day the civil penalty is not paid, beginning on the day after the penalty has been imposed. All monies derived from the imposition of civil penalties shall be transmitted to the state treasurer for deposit in the state general fund.

§ 32-3058 Records; preservation; seizure; confidentiality; release

A. If a person who holds a private vocational program license or license to grant degrees discontinues operation, the chief administrative officer of the educational institution shall file with the board the original or electronic copies, or both, of all educational records of the institution as specified by the board.

B. Educational records include at least all educational information required by colleges or vocational institutions in considering students for transfer or advanced study, including academic transcripts of each student and former student and financial accounting records of each student and former student.

C. If it appears to the board that any educational records of an educational institution are in danger of being destroyed, secreted, mislaid or otherwise made unavailable to the board, the board may seize and take possession of the educational records on its own motion and without the order of any court.

D. The board shall retain the educational records it receives pursuant to sections 41-151.15 and 41-151.19. These records are confidential and are not subject to review by the general public. The board shall establish procedures for access to and release of such records to students and their authorized representatives.

§ 32-3059 Opt-in regulation

Notwithstanding any other law, a private postsecondary institution in this state that is exempt from regulation by the board may notify the board that the institution is opting in to regulation by the board.

Article 4 Student Tuition Recovery Fund

§ 32-3071 Definitions

In this article, unless the context otherwise requires:

1. "Assessment" means the amount a private postsecondary education institution is required to pay to the student tuition recovery fund.

2. "Ceasing operations" means that a private postsecondary education institution has stopped offering educational courses or programs to the public for any reason.

3. "Distance learning instruction" means a written correspondence or online education program for students who are enrolled in an institution licensed under this chapter.

4. "Fund" means the student tuition recovery fund.

5. "Newly enrolled student" means a student who is enrolling with a private postsecondary education institution for the first time.

6. "Person injured" means a student of a private postsecondary education institution that charges prepaid tuition to a student who is damaged monetarily by the institution ceasing operations before fulfilling its contractual obligations or fully providing the services that were paid for in advance. Person injured does not include a nonresident student who is eligible to claim for recovery under a student tuition recovery fund or similar fund in the student's state of residence.

7. "Prepaid tuition" means monies that are advanced to an educational institution before the educational institution provides its service.

8. "Private postsecondary education institution" or "institution" means an educational institution that is subject to licensure under this chapter.

9. "Total course cost" means the tuition and other fees that are charged by the private postsecondary education institution for each course offered.

§ 32-3072 Student tuition recovery fund

A. The student tuition recovery fund is established and shall be administered by the board. A person who is injured by a private postsecondary education institution ceasing operations may recover from the fund an amount that does not exceed the actual damages sustained.

B. Each private postsecondary education institution that collects prepaid tuition shall annually pay an assessment to the board for each newly enrolled student in an amount equal to the sum of two-tenths of one percent of the total course cost for each newly enrolled student, not to exceed $10 per student. A private postsecondary education institution is not required to pay more than $25,000 per annual assessment period. A private postsecondary education institution is not required to pay assessments for newly enrolled students who are not residents of this state and for whom the institution has paid a student tuition recovery fund assessment or an assessment to a similar fund in the student's state of residence. A private postsecondary education institution is not required to pay assessments for students who are not residents of this state and who are enrolled in distance learning instruction.

C. If on June 30 of any year the balance in the fund exceeds $500,000, and on notice by the board to institutions, only institutions and schools that are newly or provisionally licensed during or after that fiscal year then ended shall pay the assessment.

§ 32-3073 Powers and duties of board over fund

A. The board shall:

1. Administer the student tuition recovery fund.

2. Receive claims against the fund from persons injured and provide students' educational records from closed institutions.

3. Determine the amount of monies in any fiscal year to be drawn to administer the fund.

4. Deduct reasonable costs from the fund in addition to those allowed in paragraph 2 of this subsection for any of the following purposes:

(a) Seizing student records from a closed school.

(b) Processing student record requests.

(c) Reimbursing the board or a third party as the custodian of records.

5. Not later than ten business days after a board meeting, notify institutions, pursuant to section 32-3072, subsection C, that only institutions that are newly or provisionally licensed during or after that fiscal year shall pay the assessment.

6. Review the balance of the fund at the first board meeting that is held after June 30 of each year.

7. Adopt rules necessary to administer this article.

B. If an institution that is subject to assessments under section 32-3072 ceases operations with assessments unpaid to the board, the board and the attorney general shall recover the assessments from the institution.

§ 32-3074 Deposit of assessments

A. The assessments and student record request fees received by the board for deposit in the fund shall be held in trust to carry out the purposes of the fund. On notice from the board, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

B. The monies deposited in the fund are continuously appropriated to the board to carry out the purposes of the fund.

C. Any monies unexpended and unencumbered in the fund at the close of a fiscal year shall not revert to the state general fund.

D. Monies held in the fund shall be available only to satisfy valid claims submitted to the board by persons who provide educational records and who are injured and are exempt from execution and from all claims by an institution's creditors or other claimants.

§ 32-3075 Statute of limitations; recovery from fund; eligibility

A. A claim against the fund shall not be commenced later than one year after the private postsecondary education institution has ceased operations. The person injured shall submit a complaint to the board outlining the circumstances surrounding the claim. The board shall promptly investigate the complaint. If the complaint and claim are valid the board shall pay the claim in the amount it considers reasonable.

B. Any person injured by a private postsecondary education institution ceasing operation is eligible to submit a claim against the fund unless the person is not a resident of this state and is enrolled in distance learning instruction.

§ 32-3076 Subrogation

The state has the right of subrogation to the extent of payments made from the fund including the right to collect from a letter of credit, bond or cash deposit made pursuant to section 32-3023 or directly from the institution. The board and the attorney general shall promptly enforce all subrogation claims.

§ 32-3077 Violation; penalties

A. The board may suspend the license of an institution which is required to pay the assessment to the student tuition recovery fund and fails to timely pay the assessment. The board shall prohibit the institution from collecting any prepaid tuition due during the period of suspension. If the suspension is not lifted within thirty days from the date of the suspension, the board shall direct that the institution refund the total course cost paid by each person injured.

B. The board or any injured person may apply to the superior court for enforcement of a violation of an order of the board entered pursuant to this section.

Chapter 31 Regulation of Health Professions

Article 1 General Provisions

§ 32-3101 Definitions

In this chapter, unless the context otherwise requires:

1. "Certification" means a voluntary process by which a regulatory entity grants recognition to an individual who has met certain prerequisite qualifications specified by that regulatory entity and who may assume or use the word "certified" in a title or designation to perform prescribed health professional tasks.

2. "Grandfather clause" means a provision that is applicable to practitioners who are actively engaged in the regulated health profession before the effective date of a law and that exempts the practitioners from meeting the prerequisite qualifications set forth in the law to perform prescribed occupational tasks.

3. "Health professional group" means any health professional group or organization, any individual or any other interested party that proposes that any health professional group that is not presently regulated be regulated.

4. "Health professions" means professions that are regulated pursuant to chapter 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 33, 34, 35, 39 or 41 of this title, title 36, chapter 6, article 7 or title 36, chapter 17.

5. "Inspection" means the periodic examination of practitioners by a state agency in order to ascertain whether the practitioners' occupation is being carried out in a fashion consistent with the public health, safety and welfare.

6. "Licensure" or "license" means an individual, nontransferable authorization to carry on a health activity that would otherwise be unlawful in this state in the absence of the permission and that is based on qualifications that include graduation from an accredited or approved program and acceptable performance on a qualifying examination or a series of examinations.

7. "Practitioner" means an individual who has achieved knowledge and skill by practice and who is actively engaged in a specified health profession.

8. "Public member" means an individual who is not and never has been a member or the spouse of a member of the health profession being regulated and who does not have and never has had a material financial interest in either rendering the health professional service being regulated or an activity directly related to the profession being regulated.

9. "Registration" means the formal notification that, before rendering services, a practitioner must submit to a state agency setting forth the name and address of the practitioner, the location, nature and operation of the health activity to be practiced and, if required by a regulatory entity, a description of the service to be provided.

10. "Regulatory entity" means any board, commission, agency or department of this state that regulates one or more health professions in this state.

11. "State agency" means any department, board, commission or agency of this state.

§ 32-3102 Nonapplicability of chapter

This chapter does not:

1. Apply to any regulatory entity legislatively enacted before August 7, 1985, except as provided in this chapter.

2. Apply to or interfere in any way with the practice of religion or any kind of treatment by prayer.

3. Apply to any remedial or technical amendments to any law.

§ 32-3103 Regulation of health professions; legislation; criteria

A. Regulation shall not be imposed on any unregulated health profession for the purpose of prohibiting competition, but only for the exclusive purpose of protecting the public interest. All proposed legislation to regulate a health profession for the first time shall be reviewed according to the following criteria. A health profession shall be regulated by this state only if:

1. There is credible evidence that the unregulated practice of that health profession can clearly harm or endanger the public health, safety or welfare and the potential for harm is easily recognizable and not remote or dependent on tenuous argument.

2. The public needs and can reasonably be expected to benefit from an assurance of initial and continuing professional ability.

3. The public cannot be effectively protected by other means in a more cost-beneficial manner.

B. After evaluating the criteria prescribed in subsection A of this section and considering governmental and societal costs and benefits, if the legislature finds that it is necessary to regulate a health profession not previously regulated by law, the legislature shall implement the least restrictive alternative method of regulation to address the specific harm or danger identified, consistent with the public interest and the following:

1. If existing common law and statutory civil actions and criminal prohibitions are not sufficient to eradicate existing harm, the regulation shall provide for stricter civil actions and criminal prohibitions.

2. If a service is being performed for individuals that involves a hazard to the public health, safety or welfare, the regulation shall impose inspection requirements and enable an appropriate state agency to enforce violations by injunctive relief in court.

3. If the threat to the public health, safety or economic well-being is relatively small as a result of the operation of the health profession, the regulation shall implement a system of registration.

4. If the consumer may have a substantial basis for relying on the services of a practitioner, the regulation shall implement a system of certification.

5. If it is apparent that adequate regulation cannot be achieved by means other than licensing, the regulation shall implement a system of licensing.

§ 32-3104 Health professional groups; written report; legislative informational hearings; proposed legislation

A. A health professional group shall submit a written report explaining the factors prescribed in section 32-3105 to the president of the senate and the speaker of the house of representatives. The report shall be submitted on or before November 1 before the start of the legislative session for which the legislation is proposed, and the health professional group may request informational hearings pursuant to this section. The president of the senate or the speaker of the house of representatives shall assign the written report to the health committee of the house of representatives and the health and human services committee of the senate, or their respective successor committees, and the legislative committees may conduct informational hearings on the written report before the legislative session convenes. The report may be amended after it has been filed but before any hearing on the report. The committees shall study the written report and may take public comment on the report at the informational hearings but shall not vote whether to accept or reject the report filed by the health professional group. A health professional group may seek to introduce legislation in the legislative session regardless of comments, if any, from the informational hearings.

B. If a health professional group's report is not heard by a legislative committee pursuant to subsection A of this section, the health professional group may seek to have legislation introduced in the legislative session for certification, registration or licensure. The lack of a hearing shall not be considered as either support or rejection of the health professional group's proposed legislation.

C. Unless there is a material change in the proposed certification, registration or licensure, a health professional group is not required to refile a report if the health professional group filed the report within the previous five years. On or before November 1, the health professional group shall notify in writing the speaker of the house of representatives, the president of the senate and the chairpersons of the respective health committees if the health professional group intends to pursue the proposed certification, registration or licensure during the next legislative session and shall reference the specific report that was previously filed on which the health professional group is relying.

§ 32-3105 Health professional groups; proposed regulation; factors

A health professional group that is seeking regulation shall explain each of the following factors to the extent requested by the legislative committees:

1. Why regulation is necessary, including:

(a) The nature of the potential harm to the public if the health profession is not regulated and the extent to which there is a threat to public health and safety.

(b) The extent to which consumers need and will benefit from a method of regulation, identifying competent practitioners and indicating typical employers, if any, of practitioners in the health profession.

(c) The extent of autonomy a practitioner has, as indicated by the following:

(i) The extent to which the health profession calls for independent judgment and the extent of skill or experience required in making the independent judgment.

(ii) The extent to which practitioners are supervised.

2. The efforts made to address the problem, including:

(a) Voluntary efforts, if any, by members of the health profession to either:

(i) Establish a code of ethics.

(ii) Help resolve disputes between health practitioners and consumers.

(b) Recourse to and the extent of use of applicable law and whether it could be amended to control the problem.

3. The alternatives considered, including:

(a) Regulation of business employers or practitioners rather than employee practitioners.

(b) Regulation of the program or service rather than the individual practitioners.

(c) Registration of all practitioners.

(d) Certification of all practitioners.

(e) Other alternatives.

(f) Why the use of the alternatives specified in this paragraph would not be adequate to protect the public interest.

(g) Why licensing would serve to protect the public interest.

4. The benefit to the public if regulation is granted, including:

(a) The extent to which the incidence of specific problems present in the unregulated health profession can reasonably be expected to be reduced by regulation.

(b) Whether the public can identify qualified practitioners.

(c) The extent to which the public can be confident that qualified practitioners are competent, including:

(i) Whether the proposed regulatory entity would be a board composed of members of the profession and public members or a state agency, or both, and, if appropriate, their respective responsibilities in administering the system of registration, certification or licensure, including the composition of the board and the number of public members, if any, the powers and duties of the board or state agency regarding examinations and for cause revocation, suspension and nonrenewal of registrations, certificates or licenses, the adoption of rules and canons of ethics, the conduct of inspections, the receipt of complaints and disciplinary action taken against practitioners and how fees would be levied and collected to pay for the expenses of administering and operating the regulatory system.

(ii) If there is a grandfather clause, whether grandfathered practitioners will be required to meet the prerequisite qualifications established by the regulatory entity at a later date.

(iii) The nature of the standards proposed for registration, certification or licensure as compared with the standards of other jurisdictions.

(iv) Whether the regulatory entity would be authorized to enter into reciprocity agreements with other jurisdictions.

(v) The nature and duration of any training, including whether the training includes a substantial amount of supervised field experience, whether training programs exist in this state, if there will be an experience requirement, whether the experience must be acquired under a registered, certified or licensed practitioner, whether there are alternative routes of entry or methods of meeting the prerequisite qualifications, whether all applicants will be required to pass an examination, and if an examination is required, by whom it will be developed and how the costs of development will be met.

(d) Assurance of the public that practitioners have maintained their competence, including:

(i) Whether the registration, certification or licensure will carry an expiration date.

(ii) Whether renewal will be based only on payment of a fee or whether renewal will involve reexamination, peer review or other enforcement.

5. The extent to which regulation might harm the public, including:

(a) The extent to which regulation will restrict entry into the health profession, including:

(i) Whether the proposed standards are more restrictive than necessary to ensure safe and effective performance.

(ii) Whether the proposed legislation requires registered, certified or licensed practitioners in other jurisdictions who relocate to this state to qualify in the same manner as state applicants for registration, certification and licensure if the other jurisdiction has substantially equivalent requirements for registration, certification or licensure as those in this state.

(b) Whether there are professions similar to that of the health professional group that should be included in, or portions of the health professional group that should be excluded from, the proposed legislation.

6. The maintenance of standards, including:

(a) Whether effective quality assurance standards exist in the health profession, such as legal requirements associated with specific programs that define or enforce standards or a code of ethics.

(b) How the proposed legislation will ensure quality, including:

(i) The extent to which a code of ethics, if any, will be adopted.

(ii) The grounds for suspension or revocation of registration, certification or licensure.

7. A description of the group proposed for regulation, including a list of associations, organizations and other groups representing the practitioners in this state, an estimate of the number of practitioners in each group and whether the groups represent different levels of practice.

8. The expected costs of regulation, including:

(a) The impact that registration, certification or licensure will have on the costs of the services to the public.

(b) The cost to this state and to the public of implementing the proposed legislation.

§ 32-3106 Health professional groups; increased scope of practice; factors; legislation; notification; definition

A. When considering proposed legislation to increase the scope of practice for a health professional group, the legislature shall consider the following factors:

1. Whether current education and training or preparedness or available continuing education and training for that health professional group adequately prepares members of the health professional group for the increased scope of practice sought.

2. Whether increasing the scope of practice will improve patient access to safe and affordable care.

3. Whether increasing the scope of practice will advance health, safety or welfare as defined in section 41-1093.

4. Whether increasing the scope of practice will create a substantial regulatory burden for this state, including the administrative and financial capacity of the regulatory entity that regulates that health professional group.

B. Within ten days after the introduction of proposed legislation or an amendment to proposed legislation to increase the scope of practice for a health professional group, the health professional group seeking the increase in the scope of practice shall provide written notification to the regulatory entity that regulates the health professional group regarding the introduction of or amendment to the proposed legislation.

C. For the purposes of this section, "increase the scope of practice" means to engage in conduct beyond the authority granted to a health profession by law.

§ 32-3107 Continuing education requirements; evidence of effectiveness

Any legislative proposal which contains a continuing education requirement for a health profession shall be accompanied by evidence that such a requirement has been proven effective for the health profession.

§ 32-3108 Grievance process; public testimony

Notwithstanding any law to the contrary, a regulatory entity shall allow a person or a representative of a person who has made a complaint or a person or a representative of a person against whom a complaint has been made attending a board disciplinary meeting open to the public to address the board on that complaint on the agenda by filling out a request form before or at the time of the meeting.

Article 2 Licensure

§ 32-3121 Definitions

In this article, unless the context otherwise requires:

1. "Health profession regulatory board" has the same meaning prescribed in section 32-3201.

2. "Temporary license" means a short-term license issued to a qualified individual to work in this state on a short-term basis by teaching a course, seminar or class, working during the process of receiving a full and active license, working while traveling with a sports or athletic team or providing free services during a declared state or national disaster.

§ 32-3122 Rules

A health profession regulatory board may adopt rules to carry out this article.

§ 32-3123 Board delegation; executive director

Notwithstanding any other provision of this title, a health profession regulatory board may grant authority to the board's executive director to issue and approve licenses, certifications, registrations, preceptorships, reinstatements or waivers to an applicant or licensee who meets all of the following requirements:

1. Fulfills all requirements of the applicable chapter under this title for licensure, certification, registration, preceptorship, reinstatement or waivers.

2. Has not had a license suspended or revoked by a health profession regulatory board in this or any other jurisdiction.

3. Is not currently under investigation by a health profession regulatory board in this or any other jurisdiction.

4. Has not surrendered a license in lieu of disciplinary action by a health profession regulatory board in this or any other jurisdiction.

5. Has not engaged in any criminal or civil conduct that could be considered unprofessional conduct.

6. Has no disciplinary action on a license issued by a health profession regulatory board in this or any other jurisdiction.

§ 32-3124 Temporary licensure; rules; fee; applicability

A. A health profession regulatory board in this state may issue a temporary license to allow an applicant who is not a licensee to practice in this state if the applicant meets all of the following requirements:

1. Holds an active and unrestricted health profession license in a state, territory or possession of the United States.

2. Has never had a health profession license revoked or suspended.

3. Is not the subject of an unresolved complaint against the person's health profession license.

4. Has paid any applicable fees.

B. The applicant shall submit to the respective health profession regulatory board a notarized affidavit attesting that the applicant meets the requirements of the respective licensing chapter. The applicant shall notify the board immediately if a circumstance specified in subsection A of this section changes during the application period for a temporary license or while holding a temporary license, at which time the board may suspend, deny or revoke the temporary license. The board may suspend, deny or revoke a temporary license and deny the application for initial licensure if the applicant has misrepresented the attestation required by this subsection or any other portion of the application pursuant to this article.

C. A health profession regulatory board shall approve or deny an application under this section within thirty days after an applicant submits a complete application.

D. If granted, a temporary license issued pursuant to this section expires the earlier of thirty days after the date the temporary license is granted or on approval or denial of the applicant's license application submitted pursuant to the respective health profession regulatory board.

E. For the purpose of meeting the requirements of subsection A of this section, an applicant shall provide the respective health profession regulatory board the name of each state, territory or possession of the United States in which the person is licensed or has held a license, and the board shall verify with the applicable regulatory board that the applicant holds an active and unrestricted license and has never had a license revoked or suspended or surrendered a license for disciplinary reasons. The board may accept the confirmation of this information from each other regulatory board verbally, in writing or through the use of the other regulatory board's website, which shall be followed by either an electronic or hard copy of the verification required. If the board is unable to verify the information within the initial thirty days as required by subsection C of this section, the board may extend the time frame by an additional thirty days to receive the necessary verification.

F. The temporary license may not be renewed.

G. A health profession regulatory board may not issue more than two temporary licenses to the same applicant within a consecutive twelve-month period.

H. A health profession regulatory board may establish an application and fee in rule for temporary licensure under this section.

I. This section applies to a health profession regulatory board to the extent that this section does not conflict with the board's current statutory authority relating to temporary licensure.

Chapter 32 Health Professionals

Article 1 General Provisions

§ 32-3201 Definitions

In this chapter, unless the context otherwise requires:

1. "Health profession regulatory board" means any board that regulates one or more health professionals in this state.

2. "Health professional" means a person who is certified or licensed pursuant to chapter 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 33, 34, 35, 39, 41 or 42 of this title, title 36, chapter 4, article 6, title 36, chapter 6, article 7 or title 36, chapter 17.

3. "Medical record" has the same meaning prescribed in section 12-2291 but does not include prescription orders.

§ 32-3201.01 Definition of medication-assisted treatment

In this title, unless the context otherwise requires, "medication-assisted treatment" means the use of pharmacological medications that are approved by the United States food and drug administration, in combination with counseling and behavioral therapies, to provide a whole patient approach to the treatment of substance use disorders.

§ 32-3202 License or certificate suspension

The certificate or license of a health professional who does not renew the certificate or license as prescribed by statute and who has been advised in writing that an investigation is pending at the time the certificate or license is due to expire or terminate does not expire or terminate until the investigation is resolved. The license is suspended on the date it would otherwise expire or terminate and the health professional shall not practice in this state until the investigation is resolved. The certificate is suspended on the date it would otherwise expire or terminate and the health professional shall not practice as a certified health professional in this state until the investigation is resolved.

§ 32-3203 Malpractice claim investigation

On receipt of a malpractice report and a copy of a malpractice complaint as provided in section 12-570, the health profession regulatory board shall initiate an investigation into the matter to determine if the licensee is in violation of the statutes or rules governing licensure.

§ 32-3204 Experimental diagnosis, therapy or treatment; implied consent; definition

A. Notwithstanding any provision of this title to the contrary, a health professional, within the scope of that person's profession, may use an experimental diagnosis, therapy or treatment on a patient who is unable to make or communicate health care decisions and who has an emergent life threatening condition if the requirements of 21 Code of Federal Regulations parts 50, 56, 312, 314, 601, 812 and 814 have been met.

B. A health professional who performs an experimental diagnosis, therapy or treatment pursuant to this section is deemed to have obtained the patient's implied consent for the purposes of title 12, chapter 5.1, article 1.

C. For purposes of this section, "experimental diagnosis" means the pharmaceuticals, devices and technology used to diagnose patients.

§ 32-3205 Board disciplinary action; voting requirements

If a disciplinary action requires a vote of board members, a health profession regulatory board shall conduct that vote by roll call. The board shall maintain a record of each member's vote. This section does not prohibit a board from using a consent agenda.

§ 32-3206 Disciplinary action; information; disclosure

A. At least ten business days before a meeting of a health profession regulatory board to review the status of an investigation, the board shall provide notice of the meeting to the health professional, including notice of the opportunity for the health professional to request a copy of the report concerning the investigation.

B. At least ten business days before a disciplinary interview or a hearing, if the board does not hold a disciplinary interview, the health profession regulatory board shall notify the health professional and, at that person's request, the board shall provide the health professional or the health professional's attorney with the information listed in this section. The board shall provide the following information:

1. Any review conducted by an expert or consultant providing an evaluation of or opinion on the allegations.

2. Any records on the patient obtained by the board from other health care providers.

3. The results of any evaluations or tests of the health professional conducted at the board's direction.

4. Any other factual information that the board will use in making its determination.

C. A person who obtains information from the board pursuant to this section may not release it to any other person or entity or use it in any proceeding or action except in connection with the board's review of the investigation, the disciplinary interview and any administrative proceedings or appeals related to the disciplinary interview or hearing. A person who violates this subsection commits an act of unprofessional conduct.

D. The board may charge the health professional or the health professional's attorney for the cost of providing the information received up to the fee for making a copy of each page as prescribed by section 12-284, subsection A.

§ 32-3207 Health professionals disease hazard; testing; petition; definition

A. A health professional may petition the court to allow for the testing of a patient or deceased person if there is probable cause to believe that in the course of that health professional's practice there was a significant exposure.

B. The court shall hear the petition promptly. If the court finds that probable cause exists to believe that significant exposure occurred between the patient or deceased person and the health professional, the court shall order that either:

1. The person who transferred blood or bodily fluids onto the health professional provide two specimens of blood for testing.

2. If the person is deceased, the medical examiner draw two specimens of blood for testing.

C. On written notice from the employer of the health professional, the medical examiner is authorized to draw two specimens of blood for testing during the autopsy or other examination of the deceased person's body. The medical examiner shall release the specimen to the employing agency or entity for testing only after the court issues its order pursuant to subsection B. If the court does not issue an order within thirty days after the medical examiner collects the specimen, the medical examiner shall destroy the specimen.

D. Notice of the test results shall be provided as prescribed by the department of health services to the person tested, the health professional named in the petition and the health professional's employer. If the person is incarcerated or detained, the notice shall also be provided to the chief medical officer of the facility in which the person is incarcerated or detained.

E. For the purposes of this section, "significant exposure" means contact of a person's ruptured or broken skin or mucous membranes with another person's blood or bodily fluid, other than tears, saliva or perspiration, of a magnitude that the centers for disease control of the United States public health service have epidemiologically demonstrated can result in the transmission of blood borne or bodily fluid carried diseases.

§ 32-3208 Criminal charges; mandatory reporting requirements; civil penalty; exceptions

A. A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed.

B. An applicant for licensure or certification as a health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after submitting the application must notify the regulatory board in writing within ten working days after the charge is filed.

C. On receipt of this information the regulatory board may conduct an investigation.

D. A health professional who does not comply with the notification requirements of this section commits an act of unprofessional conduct. The health professional's regulatory board may impose a civil penalty of not more than $1,000 in addition to other disciplinary action it takes.

E. The regulatory board may deny the application of an applicant who does not comply with the notification requirements of this section.

F. On request, a health profession regulatory board shall provide an applicant or health professional with a list of misdemeanors that the applicant or health professional must report.

G. Notwithstanding any other provision of this section, a person who is licensed or permitted pursuant to chapter 18 of this title is not subject to:

1. An investigation, a civil penalty or any other disciplinary action for failing to disclose a criminal charge if the criminal charge is more than four years old and does not involve sexual misconduct, an incident or occurrence involving a felony, diversion of a controlled substance or impairment while practicing. Diversion of a controlled substance does not include administrative errors or recordkeeping violations when there is not evidence of an actual loss of a controlled substance.

2. A civil penalty or any other disciplinary action for failing to report a criminal charge if the licensee or permittee has disclosed the charge in any manner, including a renewal application, even if the disclosure occurred after the ten-working-day period specified in subsection A of this section.

§ 32-3209 Release of information; fees

A. On request of any person, a health profession regulatory board must provide the following information to that person:

1. A copy of the minutes of any specified board meeting.

2. A copy of a board action concerning a person regulated by the board.

3. A copy of the final adjudication of a complaint against a person regulated by the board. For the purposes of this paragraph, final adjudication of a complaint does not include any complaint that was dismissed or terminated more than five years before the request was submitted.

4. The name and primary practice address of a person regulated by the board.

B. A health regulatory board may charge a fee for copies of any of the information in subsection A.

§ 32-3210 Billing for laboratory costs; unprofessional conduct; definition

A. It is an act of unprofessional conduct for a health professional to request a laboratory that provides anatomic pathology services at the health professional's orders to submit a bill for anatomic pathology services, whether occurring in this state or elsewhere, to any person or entity other than the following:

1. The patient.

2. The responsible insurer or other third party payor.

3. The health care institution.

4. A referring laboratory, excluding the laboratory of the health professional who ordered the test.

5. A governmental agency or the agency's public or private agent, agency or organization that is acting on behalf of the recipient of the services.

B. For the purposes of this section, "anatomic pathology services" includes cytology services, molecular pathology services, hematopathology, histopathology, surgical pathology, and blood banking services performed by a pathologist. Anatomic pathology services does not include the collection, packaging and transportation of the specimen.

§ 32-3211 Medical records; protocol; unprofessional conduct; corrective action; exemptions

A. A health professional must prepare a written protocol for the secure storage, transfer and access of the medical records of the health professional's patients. At a minimum the protocol must specify:

1. If the health professional terminates or sells the health professional's practice and the patient's medical records will not remain in the same physical location, the procedure by which the health professional shall notify each patient in a timely manner before the health professional terminates or sells the health professional's practice in order to inform the patient regarding the future location of the patient's medical records and how the patient can access those records.

2. The procedure by which the health professional may dispose of unclaimed medical records after a specified period of time and after the health professional has made good faith efforts to contact the patient.

3. How the health professional shall timely respond to requests from patients for copies of their medical records or to access their medical records.

B. The protocol prescribed in subsection A of this section must comply with the relevant requirements of title 12, chapter 13, article 7.1 regarding medical records.

C. A health professional shall indicate compliance with the requirements of this section on the health professional's application for relicensure in a manner prescribed by the health professional's regulatory board.

D. A health professional who does not comply with this section commits an act of unprofessional conduct.

E. In addition to taking disciplinary action against a health professional who does not comply with this section, the health professional's regulatory board may take corrective action regarding the proper storage, transfer and access of the medical records of the health professional's patients. For the purposes of this subsection, corrective action does not include taking possession or management of the medical records.

F. For the purposes of this section, health professional does not include a veterinarian.

G. This section does not apply to a health professional who is employed by a health care institution as defined in section 36-401 that is responsible for the maintenance of the medical records.

§ 32-3212 Umbilical cord blood; patient information; definition

A. Beginning January 1, 2007, if a health professional has a patient who is in her second trimester of pregnancy, the health professional must inform the patient of the following options relating to stem cells that are contained in the umbilical cord blood after the delivery of her child:

1. Discard the stem cells.

2. Donate the stem cells to a public umbilical cord blood bank.

3. Store the stem cells in a family umbilical cord blood bank for use by the immediate and extended family members.

4. Store the stem cells for family use through a family or sibling donor banking program that provides free collection, processing and storage where there is a medical need.

B. If the department of health services has issued a pamphlet on this subject, the health professional must also provide the patient with this pamphlet.

C. A health professional meets the notification requirements of this section by providing this information verbally or in writing or by providing the woman with a publication prepared by the department of health services.

D. This section does not impose an obligation on a health professional to inform a pregnant woman regarding the option of umbilical cord blood collection if that information conflicts with the health professional's bona fide religious beliefs.

E. A person who acts in good faith pursuant to this section is not subject to civil or criminal liability or professional discipline for those acts.

F. For the purposes of this section, "umbilical cord blood" means the blood that remains in the umbilical cord and placenta after the birth of a newborn child.

§ 32-3213 Health professionals; disclosure; unprofessional conduct; definition

A. An advertisement for health care services that includes a health professional's name shall identify the title and type of license the health professional holds and under which the health professional is practicing.

B. A health professional who violates this section commits an act of unprofessional conduct.

C. For the purposes of this section, "advertisement" includes billboards, brochures, pamphlets, radio and television scripts, electronic media, printed telephone directories, telephone and direct mail solicitations and any other means of promotion intended to directly or indirectly induce any person to enter into an agreement for services with the health professional. Advertisement does not include materials that provide information about network providers and that are created by an entity regulated under title 20.

§ 32-3214 Board actions; public access to records; website

A. If a health profession regulatory board dismisses a complaint, the record of that complaint is available to that regulatory board and the public pursuant to section 39-121 but may not appear on the board's website. For the purposes of this subsection, "dismisses a complaint" means that a board does not issue a disciplinary or nondisciplinary order or action against a licensee or certificate holder. A pending complaint or investigation may not be disclosed to the public.

B. All disciplinary actions against a licensee or certificate holder shall be available on the health profession regulatory board's website for not more than five years. If a health profession regulatory board issues a final nondisciplinary order or action, the record of the final nondisciplinary order or action shall be made available on the board's website for not more than five years. Letters of concern and advisory letters may not be made available on the website but a copy of such letters are available to the public pursuant to section 39-121 and shall be provided to any person on request.

C. If a health profession regulatory board maintains a website, the board must display on its website a statement that a person may obtain additional public records related to any licensee or certificate holder, including dismissed complaints and nondisciplinary actions and orders, by contacting the board directly.

D. This section does not prohibit a health profession regulatory board from conducting its authorized duties in a public meeting.

E. Subsections A and B of this section do not apply to meeting minutes and notices kept by the board in accordance with the public meeting requirements of title 38, chapter 3, article 3.1.

§ 32-3215 Medical marijuana; unprofessional conduct; annual reports; identifying information

A. It is an act of unprofessional conduct for a health professional who is licensed pursuant to chapter 13, 14, 17 or 29 of this title to recommend medical marijuana pursuant to title 36, chapter 28.1 for other than a debilitating medical condition as defined in section 36-2801.

B. The Arizona medical board, the Arizona board of osteopathic examiners in medicine and surgery, the naturopathic physicians medical board and the board of homeopathic and integrated medicine examiners shall each submit an annual report on or before November 15 to the governor, the president of the senate, the speaker of the house of representatives and the director of the department of health services that includes at least the following information:

1. The number of notifications received from the department of health services and from the public of suspected unprofessional conduct that relate to medical marijuana recommendations issued pursuant to title 36, chapter 28.1.

2. The number of investigations conducted as a result of information received pursuant to paragraph 1 and the outcome of those investigations.

C. Annual reports filed pursuant to subsection B of this section shall not include identifying information about a physician.

§ 32-3216 Health care providers; charges; public availability; direct payment; notice; definitions

A. A health care provider must make available on request or online the direct pay price for at least the twenty-five most commonly provided services, if applicable, for the health care provider. The services may be identified by a common procedural terminology code or by a plain-English description. The direct pay prices must be updated at least annually and must be based on the services from a twelve-month period that occurred within the eighteen-month period preceding the annual update. The direct pay price must be for the standard treatment provided for the service and may include the cost of treatment for complications or exceptional treatment. Health care providers who are owners or employees of a legal entity with fewer than three licensed health care providers are exempt from the requirements of this subsection.

B. Subsection A of this section does not apply to emergency services.

C. The health care services provided by health care providers in veterans administration facilities, health facilities on military bases, Indian health services hospitals and other Indian health service facilities, tribal owned clinics, the Arizona state hospital and any health care facility determined to be exempt pursuant to section 36-437, subsection D, are exempt from the requirements of this section.

D. Subsection A of this section does not prevent a health care provider from offering either additional discounts or additional lawful health care services for an additional cost to a person or an employer paying directly.

E. A health care provider is not required to report the direct pay prices to a government agency or department or to a government-authorized or government-created entity for review or filing. A government agency or department or government-authorized or government-created entity may not approve, disapprove or limit a health care provider's direct pay price for services. A government agency or department or government-authorized or government-created entity may not approve, disapprove or limit a health care provider's ability to change the published or posted direct pay price for services.

F. A health care system may not punish a person or employer for paying directly for lawful health care services or a health care provider for accepting direct payment from a person or employer for lawful health care services.

G. Except as provided in subsection N of this section, a health care provider who receives direct payment from a person or employer for a lawful health care service is deemed paid in full if the entire fee for the service is paid and shall not submit a claim for payment or reimbursement for the service to any health care system. This subsection does not prevent a health care provider from pursuing a health care lien for customary charges pursuant to title 33. This subsection does not affect the ability of a health care provider to submit claims for the same service provided on other occasions to the same or a different person if no direct payment occurs. This subsection does not require a health care provider to refund or adjust any capitated payment, bundled payment or other form of prepayment or global payment made by a health care system to the health care provider for lawful health care services to be provided by the health care provider for the person who makes, or on whose behalf an employer makes, direct payment to the health care provider.

H. Before a health care provider who is contracted as a network provider for a health care system accepts direct payment from a person or an employer, and the person is an enrollee of the same health care system, the health care provider shall obtain the person's or employer's signature on a notice in a form that is substantially similar to the following:

Important notice about direct payment

for your health care services

The Arizona Constitution permits you to pay a health care provider directly for health care services. Before you make any agreement to do so, please read the following important information:

If you are an enrollee of a health care system (more commonly referred to as a health insurance plan) and your health care provider is contracted with the health insurance plan, the following apply:

1. You may not be required to pay the health care provider directly for the services covered by your plan, except for cost share amounts that you are obligated to pay under your plan, such as copayments, coinsurance and deductible amounts.

2. Your provider's agreement with the health insurance plan may prevent the health care provider from billing you for the difference between the provider's billed charges and the amount allowed by your health insurance plan for covered services.

3. If you pay directly for a health care service, your health care provider will not be responsible for submitting claim documentation to your health insurance plan for that claim. Before paying your claim, your health insurance plan may require you to provide information and submit documentation necessary to determine whether the services are covered under your plan.

4. If you do not pay directly for a health care service, your health care provider may be responsible for submitting claim documentation to your health insurance plan for the health care service.

Your signature below acknowledges that you received this notice before paying directly for a health care service.

I. A health care provider who receives direct payment for a lawful health care service and who complies with subsection H of this section is not responsible for submitting documentation of any kind for purposes of reimbursement to any health care system for that claim if the failure to submit such documentation does not conflict with the terms of any federal or state contracts to which the health care system is a party and the health care provider has agreed to serve patients under or with applicable state or federal programs in which a health care provider and health care system participate.

J. A health care provider who receives direct payment pursuant to this section shall provide the person making the direct payment with a receipt that includes the following information:

1. The amount of the direct payment.

2. The applicable procedure and diagnosis codes for the services rendered.

3. A clear notation that the services were subject to direct payment under this section.

K. If an enrollee pays to a health care provider who is an out-of-network provider the direct pay price for a lawful health care service that is covered under the enrollee's health care plan, pursuant to the requirements of this section, the amount paid by the enrollee shall be applied first to the enrollee's in-network deductible with any remaining monies being applied to the enrollee's out-of-network deductible, if applicable. The amount applied to the in-network deductible shall be the amount paid directly or the insurer's prevailing contracted commercial rate for the enrollee's health care plan in this state for the service or services. If the service or services do not match standard codes or bundled payment programs in use in this state by the insurer, the amount applied to the in-network deductible shall be the amount paid directly. For the purposes of this subsection, "prevailing contracted commercial rate" means the most usual and customary rate that an insurer offers as payment for a specific service under a specific health care plan, not including a plan offered under medicare or medicaid or on a health insurance exchange.

L. If an enrollee is enrolled in a high deductible plan that qualifies the enrollee for a health savings account as defined in 26 United States Code section 223, the health care system is not liable if the enrollee submits a claim for deductible application of a direct pay amount pursuant to subsection K of this section that jeopardizes the enrollee's status as an individual eligible for favorable tax treatment of the health savings account.

M. This section does not create any private right or cause of action for or on behalf of any person against the health insurer. This section provides solely an administrative remedy for any violation of this section or any related rule.

N. This section does not impair the provisions of a health care system's private health care network provider contract, except that a health care provider may accept direct payment from a person or employer or may decline to bill the health care system directly for services paid directly by a person or employer if the health care provider has complied with subsection H of this section and the health care provider's receipt of direct payment and the declination to bill the health care system do not conflict with the terms of any federal or state contract to which the health care system is a party and the health care provider has agreed to serve patients under or with applicable state or federal programs in which both a health care provider and health care system participate.

O. A health care provider who does not comply with the requirements of this section commits unprofessional conduct. Any disciplinary action taken by the health professional's licensing board may not include revocation of the health care provider's license.

P. For the purposes of this section:

1. "Direct pay price" means the price that will be charged by a health care provider for a lawful health care service, regardless of the health insurance status of the person, if the entire fee for the service is paid in full directly to a health care provider by the person, including the person's health savings account, or by the person's employer and that does not prohibit a provider from establishing a payment plan with the person paying directly for services.

2. "Emergency services" means lawful health care services needed to evaluate and stabilize an emergency medical condition as defined in 42 United States Code section 1396u-2(b)(2)(C).

3. "Enrollee" means a person who is enrolled in a health care plan provided by a health insurer.

4. "Health care plan" means a policy, contract or evidence of coverage issued to an enrollee. Health care plan does not include limited benefit coverage as defined in section 20-1137.

5. "Health care provider" means a person who is licensed pursuant to chapter 7, 8, 13, 16, 17, 19 or 34 of this title.

6. "Health care system" means a public or private entity whose function or purpose is the management, processing or enrollment of individuals or the payment, in full or in part, of health care services.

7. "Health insurer":

(a) Means a disability insurer, group disability insurer, blanket disability insurer, health care services organization, hospital service corporation, medical service corporation or hospital and medical service corporation as defined in title 20.

(b) Does not include a governmental plan as defined in the employee retirement income security act of 1974 (P.L. 93-406; 88 Stat. 829; 29 United States Code section 1002).

8. "Lawful health care services" means any health-related service or treatment, to the extent that the service or treatment is permitted or not prohibited by law or regulation, that may be provided by persons or businesses otherwise permitted to offer the services or treatments.

9. "Punish" means to impose any penalty, surcharge or named fee with a similar effect that is used to discourage the exercise of rights under this section.

§ 32-3217 Volunteer health services registration; health professionals; free medical clinic

A. A health profession regulatory board in this state may issue a volunteer health services registration to allow a health professional who is not a licensee to practice in this state for a total of up to fourteen days each calendar year if the health professional meets all of the following requirements:

1. Holds an active and unrestricted license in a state, territory or possession of the United States.

2. Has never had a license revoked or suspended.

3. Is not the subject of an unresolved complaint.

4. Applies for registration every two years as prescribed by the board.

5. Agrees to render services at a free medical clinic that does not provide abortions and restricts the health professional's authorized services and duties to the provision of care or service at a free medical clinic.

6. Provides only the care or services that the health professional is licensed or authorized to provide by the health professional's regulatory agency or this state's regulatory board for the same health profession, whichever is more stringent.

B. The fourteen days of practice prescribed by subsection A of this section may be performed consecutively or cumulatively during each calendar year.

C. For the purpose of meeting the requirements of subsection A of this section, an applicant shall provide the appropriate health profession regulatory board the name of each state in which the person is licensed or has held a license and the board shall verify with the applicable regulatory agency of each state that the applicant is licensed or has held a license, has never had the license revoked or suspended and is not the subject of an unresolved complaint. The board may accept the verification of the information required by subsection A, paragraphs 1, 2 and 3 of this section from each of the other state's regulatory agencies either electronically or by hard copy.

D. A health profession regulatory board issuing a volunteer health services registration pursuant to this section may not charge a fee.

E. A health profession regulatory board may immediately suspend or revoke a registration issued pursuant to this section on receiving proof satisfactory to the health profession regulatory board that the holder of the registration has engaged in practice in this state that is outside the scope of the registration or that grounds exist for action against the holder of the registration under the relevant chapter of this title. The holder of a registration may request a hearing to challenge the suspension or revocation of a registration in the manner permitted for appealable agency actions under title 41, chapter 6, article 10.

§ 32-3218 Health profession regulatory boards; members; training; definitions

A. Beginning January 1, 2015, each member of a health profession regulatory board shall complete a twelve-hour training within one year after the member's initial appointment to the board. Any member of a health profession regulatory board whose initial appointment was before January 1, 2015 has until January 1, 2016 to complete the training required by this subsection. The training must include the subjects of governance and administrative management, disciplinary procedures, conduct of quasi-judicial proceedings, administrative procedure and rule adoption and licensure as they apply to the health profession regulatory board. Any training completed by a current board member on and after January 1, 2014 on the topics specified in this subsection may count toward the requirements of this subsection.

B. The training of board members required by this section may be provided by the staff of any health profession regulatory board, the office of the attorney general, the department of administration, the auditor general or an outside educational institution or any other provider that is approved by the health profession regulatory board on which the member is serving.

C. Any board action taken by a health profession regulatory board is not subject to challenge or invalidation because a board member has not completed the training required by this section.

D. For the purposes of this section:

1. "Health profession regulatory board" means any board that regulates one or more health professional in this state.

2. "Health professional" means a person who is certified or licensed pursuant to chapter 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 34, 35, 39, 41 or 42 of this title.

§ 32-3219 Licensure; renewal; notification; definitions

A. A medical practitioner regulatory board shall notify each medical practitioner who receives an initial or renewal license and who intends to apply for registration or has an active registration under the controlled substances act (21 United States Code section 801 through 904) of the medical practitioner's responsibility to register with the Arizona state board of pharmacy and be granted access to the controlled substances prescription monitoring program's central database tracking system. The Arizona state board of pharmacy shall provide access to the central database tracking system to each medical practitioner who has a valid license pursuant to this title and who possesses an Arizona registration under the controlled substances act (21 United States Code section 801 through 904).

B. For the purposes of this section:

1. "Medical practitioner" means any person who is licensed and authorized by law to use and prescribe drugs and devices for the treatment of sick and injured human beings or for the diagnosis or prevention of sickness in human beings in this state or any state, territory or district of the United States and who possesses an Arizona registration under the controlled substances act (21 United States Code sections 801 through 904).

2. "Medical practitioner regulatory board" means any board established pursuant to chapter 7, 11, 13, 14, 15, 16, 17, 25 or 29 of this title that regulates one or more medical practitioners in this state.

§ 32-3220 Health professionals; requirements for licensure; prohibition

A health professional is not required to participate in any public or private third-party reimbursement program as a condition of licensure under this title.

§ 32-3221 Lawful health care services; patient education; exceptions; definitions

A. This state, any political subdivision of this state or any department or agency of this state, including a health profession regulatory board, or a private entity contracted with a health profession regulatory board to carry out functions of the board may not punish a health professional, directly or indirectly through a subcontractor or otherwise, for making a patient aware of or educating or advising a patient about lawful health care services for which there is a reasonable basis, including the off-label use of health care services or health care-related research or data, or for offering, providing or making available lawful health care services, including the off-label use of health care services for which there is a reasonable basis that is allowed under state law.

B. Unless an entity has a sincerely held religious or moral belief, the entity may not restrict a health professional who is an employee of or affiliated or contracted with the entity for making a patient aware of or educating or advising a patient about lawful health care services, including the off-label use of health care services, or health care-related research or data.

C. Making a patient aware of or educating or advising a patient about lawful health care services, including the off-label use of health care services, does not require the health care service to be covered under the health care plan or the health care system through which the patient receives care.

D. Making a patient aware of or educating or advising a patient about lawful health care services, including the off-label use of health care services, does not require a health professional, an entity that employs the health professional or a health care system to offer, provide or make the lawful health care service, including the off-label use of health care services, available to the patient.

E. This section does not:

1. Impair the rights established in article II, Constitution of Arizona, or impair any right or limitation on medical liability.

2. Prevent any reporting to a health profession regulatory board regarding medical liability cases, settlements or decisions.

3. Impair or contradict any other state law regarding lawful health care services.

4. Prohibit a health profession regulatory board from taking action if a health professional commits unprofessional conduct arising out of the conduct specified in this section.

F. For the purposes of this section:

1. "Lawful health care service" means any health-related service or treatment, to the extent that the service or treatment is allowed or not prohibited by law or regulation, including the off-label use of medications during a public health emergency, that may be provided by persons or businesses that are otherwise allowed to offer such services.

2. "Off-label use" means any use if the intent is the practice of medicine and the use is not specified in the labeling or indications for use for prescription drugs, biologics, approved medical devices and dietary supplements approved by the United States food and drug administration. For the purposes of this paragraph, "labeling" includes any written material that accompanies, supplements or explains a product.

3. "Punish" means to impose any penalty, sanction or disciplinary action to discourage the exercise of a right under this section.

4. Sincerely held religious or moral belief does not include a belief that restricts the access by a patient to a lawful health care service based on the cost of the lawful health care service for that patient.

5. Unprofessional conduct does not include conduct by a health professional who is acting within the minimum standards of practice as determined by the health professional's health profession regulatory board.

§ 32-3222 Health profession regulatory boards; terms of members; board meeting recordings; employment opportunities; websites

A. Notwithstanding any other provision of this title and except as provided in this subsection, a member of a health profession regulatory board is not eligible for reappointment to that board once the person has been appointed for two full terms, in addition to any time served on the board to fill a vacancy. A person may be reappointed to a health profession regulatory board once the person has not been on the board for a period of at least two full terms. This subsection applies to the state board of dental examiners, the Arizona medical board, the Arizona state board of nursing and the Arizona state board of pharmacy. A board member who is serving on an affected board on January 1, 2018 may complete any term to which the member has been appointed regardless of the number of terms the member has served.

B. Each health profession regulatory board shall make a digital recording of all open meetings of the board and shall maintain these recordings for three years after the date of the recording. The health profession regulatory board, within five business days after the board meeting that is the subject of the recording, shall either:

1. Post the digital recording on the board's website.

2. Post a notice on the board's website of the availability of the digital recording.

C. Each health profession regulatory board shall provide on the board's website a list of all board-specific contract employment opportunities and a link to the state procurement office to apply for those positions.

§ 32-3223 Health profession regulatory boards; nondisciplinary confidential monitoring programs

A. Each health profession regulatory board may establish a nondisciplinary confidential program, including enrollment criteria for participation in the program, for the monitoring of a licensee or certificate holder who has been reported to or who voluntarily reports to the licensee's or certificate holder's regulatory board and who may be chemically dependent or have a substance misuse history or who may have a medical, psychiatric, psychological or behavioral health disorder that may impact the licensee's or certificate holder's ability to safely practice or perform health care tasks.

B. A program established pursuant to subsection A of this section may include education, intervention, therapeutic treatment and posttreatment monitoring and support. The licensee or certificate holder is responsible for the costs associated with any treatment, rehabilitation or monitoring under a program established pursuant to subsection A of this section. The health profession regulatory board and the licensee or certificate holder may agree to enter into a nondisciplinary confidential stipulated agreement for participation in a program established pursuant to subsection A of this section.

C. The board may take further action if the licensee or certificate holder refuses to enter into a nondisciplinary confidential stipulated agreement with the board or fails to comply with the agreement's terms. The confidentiality requirements of this section do not apply if the licensee or certificate holder does not comply with the stipulated agreement.

§ 32-3223.01 Health profession regulatory board; mental health inquiry; prohibition; definition

A. A health profession regulatory board may not include any question on an application for a license, permit, certificate or endorsement that requests information about whether the applicant has sought mental health assistance or received a mental health diagnosis or treatment. The health profession regulatory board may ask if the applicant is currently under a regulatory entity's order in another state for the monitoring of a health condition, including substance abuse. The applicant is not required to respond if the monitoring is part of a confidential program.

B. For the purposes of this section, "health profession regulatory board" includes the department of health services relating to health professionals who are regulated by the department.

§ 32-3224 Complaints; time limit on filing; exceptions

Notwithstanding any time limit to the contrary in this title, a health profession regulatory board may not act on its own motion or on any complaint received by the board in which an allegation of unprofessional conduct or any other violation of the chapter that applies to a professional who holds an Arizona license or certificate occurred more than four years before the complaint is received by the board. This time limit does not apply to:

1. Medical malpractice settlements or judgments, allegations of sexual misconduct or an incident or occurrence that involved a felony, diversion of a controlled substance or impairment while practicing by the licensee or certificate holder.

2. The board's consideration of the specific unprofessional conduct related to the licensee's or certificate holder's failure to disclose conduct or a violation as required by law. This paragraph does not apply to a person who is licensed or permitted pursuant to chapter 18 of this title unless the conduct or violation is related to sexual misconduct, an incident or occurrence involving a felony, diversion of a controlled substance or impairment while practicing. Diversion of a controlled substance does not include administrative errors or recordkeeping violations when there is not evidence of an actual loss of a controlled substance.

§ 32-3225 Types of disciplinary action; reimbursement

In addition to any other disciplinary actions that may be taken, a health profession regulatory board may impose a requirement for a reimbursement of fees paid to a licensee or certificate holder by or on behalf of the patient, if requested by the patient on a complaint form prescribed by the board.

§ 32-3226 Address of record; disclosure; telephone number or email address; definition

A. A health profession regulatory board shall have, for each licensee under the board's regulation, an address of record designated by the licensee that may be disclosed to the public. If the licensee designates the licensee's residential address as the address of record, the board shall notify the licensee of the public disclosure and allow the licensee to opt out of the disclosure.

B. Each licensee who is required to maintain patient medical records must have on file with the licensee's health profession regulatory board a telephone number or email address for the board to provide to a patient who is seeking medical records.

C. A health profession regulatory board shall designate associations of licensed health professionals that may receive on request the contact information and addresses of record for all health professionals under the board's regulation, including health professionals who have opted out of public disclosure. An association of licensed health professions that receives contact information and addresses of record from a health profession regulatory board may not transfer or sell that information.

D. This section does not prohibit a health profession regulatory board from providing to the department of health services or a university under the jurisdiction of the Arizona board of regents information and data concerning the health profession regulatory board's licensees for research purposes if the information and data are not distributed to the public in a format that includes a licensee's personally identifiable information.

E. For the purposes of this section, "address of record" means either:

1. The address where a health professional practices the person's health profession or is otherwise employed.

2. The health professional's residential address.

§ 32-3227 Unauthorized practice of a health profession; verification; posting; violation; classification; definition

A. A health profession regulatory board shall regulate the unauthorized practice of the health profession the board regulates.

B. A health profession regulatory board or the executive director of the board, if delegated and consistent with each regulatory board's statutory authority, shall do all of the following after receiving a complaint regarding a person who is alleged to have engaged in the unauthorized practice of a health profession:

1. Verify all of the person's licensure or certification documentation with the primary source of the documentation.

2. Retain all records of the complaint and documentation verification for at least ten years.

3. Post on the board's public website for five years information regarding the person who the board verifies has engaged in the unauthorized practice of a health profession. The person may petition the board to have the information removed earlier than five years.

C. A health profession regulatory board may issue a cease and desist order to stop a person from engaging in the unauthorized practice of a health profession.

D. A health profession regulatory board shall notify each complainant that the person may submit additional information at any time during the investigation if the information was not initially submitted.

E. If a complainant requests to have the complainant's identifying information withheld from the person against whom the allegation of unauthorized practice of a health profession is being made, the board shall keep the complainant's identifying information confidential.

F. A person who engages in the unauthorized practice of a health profession is guilty of a class 5 felony. A health profession regulatory board shall refer each verified complaint for the unauthorized practice of a health profession to the county attorney or attorney general for prosecution.

G. For the purposes of this section, "unauthorized practice of a health profession" means to engage in the practice of a health profession without having the licensure or certification required to practice in that health profession in this state.

§ 32-3228 Informed consent; breast implant surgery; requirements; unprofessional conduct; work group; definition

A. Before performing breast implant surgery, a physician who is licensed pursuant to chapter 13 or 17 of this title must provide the patient with the following, in writing or in an electronic format, based on the information that is then generally available to physicians who perform breast implant surgery:

1. A description of the risks of breast implants and of the surgical procedures used in breast implant surgery.

2. Manufacturer patient information materials, in a hard copy or an electronic format, on the implants that will be used in the surgery, including warning requirements prescribed by the United States food and drug administration.

3. The informed consent checklist developed pursuant to subsection D of this section that includes, at a minimum, information on:

(a) Breast implant-associated anaplastic large cell lymphoma.

(b) Breast implant illness.

(c) The national breast implant registry.

4. Information on how the patient can report adverse events associated with breast implants through the United States food and drug administration's medwatch program or any similar program.

B. A physician must provide the information required by subsection A of this section and obtain written informed consent for the procedure from the patient before performing the breast implant surgery.

C. A physician who knowingly violates this section commits an act of unprofessional conduct and is subject to disciplinary action.

D. The Arizona medical board and the Arizona board of osteopathic examiners in medicine and surgery shall convene a work group that includes licensee representatives and patient advocates to jointly develop an informed consent checklist for physicians to discuss with patients before breast implant surgery. The informed consent checklist shall include the information prescribed in subsection A of this section and any other information the boards and the work group determine to be necessary. The work group shall review the checklist and provide updates as necessary.

E. For the purposes of this section, "breast implant surgery" means the surgical placement of a breast implant for cosmetic or reconstructive purposes.

§ 32-3229 Unprofessional conduct; informed consent; pelvic examinations

It is an act of unprofessional conduct for a physician who is licensed pursuant to chapter 13 or 17 of this title, a nurse practitioner who is licensed pursuant to chapter 15 of this title or a physician assistant who is licensed pursuant to chapter 25 of this title to perform or supervise an individual who performs a pelvic examination on an anesthetized or unconscious patient without first obtaining the patient's informed consent to the pelvic examination, unless performing the pelvic examination is one of the following:

1. Within the scope of the surgical procedure or diagnostic examination to be performed on the patient for which informed consent has otherwise been obtained.

2. In the case of an unconscious patient, required for diagnostic purposes and is medically necessary.

3. A forensic medical examination requested by law enforcement arising out of the need to secure evidence that the patient has been the victim of a criminal offense as prescribed in title 13, chapter 14.

§ 32-3229.01 Health professional wellness programs; confidentiality; definition

A. Any statewide association that is exempt from taxation under 26 United States Code section 501(c)(3) or 501(c)(6) and that primarily represents health professionals who are licensed to practice pursuant to chapter 13, 15 or 17 of this title may establish a health professional wellness program.

B. A record of a health professional's participation in a health professional wellness program is confidential and not subject to discovery, subpoena or a reporting requirement to the applicable health profession regulatory board, unless either:

1. The health professional voluntarily provides for written release of the information.

2. The disclosure is required to meet a person's obligation:

(a) To report criminal conduct.

(b) To report an act of unprofessional conduct.

(c) To report that the health professional is not able to safely practice.

(d) To warn an individual of an imminent threat of harm.

C. For the purposes of this section, "health professional wellness program":

1. Means a program of evaluation, counseling, including substance abuse counseling, or another modality to address an issue related to career fatigue or wellness in a health professional who is licensed pursuant to chapter 13, 15 or 17 of this title.

2. Does not include providing services that are intended to monitor for impairment.

§ 32-3230 Prohibition of irreversible gender reassignment surgery for minors; definitions

A. A physician may not provide irreversible gender reassignment surgery to any individual who is under eighteen years of age.

B. A physician may provide any of the following to an individual who is under eighteen years of age:

1. Services to an individual born with a medically verifiable disorder of sex development, including an individual with external biological sex characteristics that are irresolvably ambiguous, such as being born with forty-six XX chromosomes with virilization or forty-six XY chromosomes with undervirilization or having both ovarian and testicular tissue.

2. Services provided when a physician has otherwise diagnosed a disorder of sexual development and has determined through genetic or biochemical testing that the individual does not have normal sex chromosome structure, sex steroid hormone production or sex steroid hormone action.

3. The treatment of any infection, injury, disease or disorder that has been caused by or exacerbated by the performance of gender transition procedures, whether or not the gender transition procedure was performed in accordance with state and federal law.

4. Any procedure undertaken because the individual suffers from a physical disorder, physical injury or physical illness that would, as certified by a physician, place the individual in imminent danger of death or impairment of major bodily function unless surgery is performed.

C. For the purposes of this section:

1. "Biological sex" means the biological indication of male and female in the context of reproductive potential or capacity, such as sex chromosomes, naturally occurring sex hormones, gonads and nonambiguous internal and external genitalia present at birth, without regard to an individual's psychological, chosen or subjective experience of gender.

2. "Gender" means the psychological, behavioral, social and cultural aspects of being male or female.

3. "Gender transition" means the process in which a person goes from identifying with and living as a gender that corresponds to the person's biological sex to identifying with and living as a gender different from the person's biological sex and may involve social, legal or physical changes.

4. "Irreversible gender reassignment surgery" means a medical procedure performed for the purpose of assisting an individual with a gender transition, including any of the following:

(a) Penectomy, orchiectomy, vaginoplasty, clitoroplasty or vulvoplasty for biologically male patients or hysterectomy or ovariectomy for biologically female patients.

(b) Metoidioplasty, phalloplasty, vaginectomy, scrotoplasty or implantation of erection or testicular prostheses for biologically female patients.

(c) Augmentation mammoplasty for biologically male patients and subcutaneous mastectomy for female patients.

5. "Physician" means a person who is licensed pursuant to chapter 13 or 17 of this title.

§ 32-3230.01 Health professionals; practice; employment; business entities

Except as provided in section 32-1753, a health professional may engage in the practice for which the health professional is licensed in any form of business entity in this state or as an employee of any form of business entity in this state.

§ 32-3230.02 Renewal applications; suspension; extension; renewal fee waiver

If a health profession regulatory board suspends the processing of renewal applications for licensure or certification:

1. All current licenses and certificates that were previously issued by that health profession regulatory board are extended through the suspension period.

2. During the suspension period, the renewal fee for current licensees and certificate holders is waived.

Article 2 Cosmetic Laser and Injection Procedures

§ 32-3231 Definitions

In this article, unless the context otherwise requires:

1. "Administer" means the direct application of or dispensing or furnishing a prescription medication or a prescription-only device, whether by injection or any other means, to the body of a patient by a health professional or by the health professional's authorized agent at the direction of the health professional.

2. "Aesthetician" has the same meaning prescribed in section 32-501.

3. "Cosmetic purpose" means for the purpose of beautifying, preserving or conferring comeliness, excluding therapeutic massage and manipulations.

4. "Department" means the department of health services.

5. "Directly supervised" means a health professional who is licensed in this state and whose scope of practice allows the supervision supervises the use of a laser or IPL device for cosmetic purposes while the health professional is present at the facility where and when the device is being used.

6. "Indirect supervision" means supervision by a health professional who is licensed in this state, whose scope of practice allows the supervision and who is readily accessible by telecommunication.

7. "IPL device" has the same meaning prescribed in section 32-516.

8. "Laser" has the same meaning prescribed in section 32-516.

9. "Laser technician" means a person who is or has been certified by the department pursuant to its rules and this article.

10. "Registrant" means a person or entity that owns or operates a laser or IPL device for which the application for registration is on file with the department and that is in compliance with department rules.

§ 32-3232 Supervision

Only a health professional, who has prescribing authority and who is acting within the health professional's scope of practice, may administer or supervise another health professional, who is acting within the health professional's scope of practice, in the administration of prescription medication or a prescription-only device for a cosmetic purpose pursuant to this article, whether by injection or any other means, to a patient.

§ 32-3233 Lasers; IPL devices; authorized use; authorized supervision

A. A health professional may register, operate and use a laser or IPL device that is registered with the department or administer drugs or devices for cosmetic purposes to the extent the use is allowed by the health professional's scope of practice and the health professional has completed any training required by the health professional's regulatory board and the department.

B. A health professional may supervise another health professional in the use of a laser or IPL device for cosmetic purposes to the extent the supervision is allowed or required by the supervising health professional's scope of practice and the supervising health professional has completed any training required by the supervising health professional's regulatory board and the department.

C. The health professional's regulatory board shall investigate any complaint from the public or another board or agency involving the training, education, supervision or use of a laser or IPL device. A health professional shall report to the department any complaint received about the training or performance of a laser technician.

D. A health professional may supervise a laser technician in the use of a laser or IPL device for cosmetic purposes if:

1. The health professional is licensed pursuant to either:

(a) Chapter 11, article 2 of this title and specializes in oral and maxillofacial surgery.

(b) Chapter 13, 14, 15, 17 or 25 of this title and the supervision is within the health professional's scope of practice.

2. The supervision does not conflict with the requirements of this article.

3. The laser technician has been certified by the department to use a laser or IPL device for hair removal or other cosmetic procedures.

E. A laser technician who wishes to perform cosmetic laser procedures and procedures using IPL devices must:

1. Successfully complete forty hours of didactic training as required by department rules at a department-certified training program. The program shall provide a provisional certificate to the applicant verifying the successful completion of the didactic training.

2. For hair removal, complete hands-on training that is supervised by a health professional who is acting within the health professional's scope of practice or by a laser technician who has a minimum of one hundred hours of hands-on experience per procedure. The health professional or laser technician must be present in the room during twenty-four hours of hands-on use of lasers or IPL devices. The supervising health professional or supervising laser technician shall verify that the laser technician has completed the training and supervision as prescribed by this section.

3. For other cosmetic laser and IPL device procedures, complete a minimum of an additional twenty-four hours of hands-on training of at least ten cosmetic procedures for each type of procedure that is supervised by a health professional who is acting within the health professional's scope of practice or by a laser technician who has a minimum of one hundred hours of hands-on experience per procedure. The health professional or laser technician must be present in the room during twenty-four hours of hands-on use of lasers or IPL devices. The supervising health professional or supervising laser technician shall verify that the laser technician has completed the training and supervision as prescribed by this section.

4. Submit to the department the provisional certificate from the training program and certification by the health professional or laser technician who directly supervised the applicant in the room during the hands-on training.

F. The department shall issue a laser technician certificate authorizing the use of lasers and IPL devices only for hair removal if the applicant meets the applicable requirements of subsection E of this section, or for hair removal and other cosmetic procedures if the applicant meets the applicable requirements of subsection E of this section. The department shall maintain a current register of those laser technicians in good standing and whether certification is only for hair removal or for hair removal and other cosmetic procedures. The department may establish a fee for the registration of laser technicians and the issuance of certificates pursuant to this subsection. The department shall deposit monies collected pursuant to this subsection in the laser safety fund established by section 32-3234.

G. A laser technician who has been using laser and IPL devices before November 24, 2009 may continue to do so if the laser technician applies for and receives a certificate pursuant to this section before October 1, 2010.

H. A laser technician may use a laser or IPL device in the following circumstances:

1. For hair removal under the indirect supervision of a health professional whose scope of practice permits the supervision.

2. For cosmetic purposes other than hair removal if the laser technician is directly supervised by a health professional whose scope of practice permits the supervision.

I. The supervising health professional, the employer of a laser technician and the registrant who owns or operates the laser or IPL device are subject to disciplinary action by the appropriate regulatory board for any errors made by a laser technician or for the use of a laser or IPL device that is not allowed by this article. A person who employs a person who operates a laser or IPL device must report any misuse of a laser or IPL device to the operator's regulatory board and to the department.

J. The department shall investigate any complaint from a member of the public or another board or agency involving the training, education, practice or complaint of harm resulting from a laser technician performing procedures for cosmetic purposes under this article and shall take appropriate disciplinary action as necessary, including revocation of the laser technician's certification or revocation of a registrant's or employer's license to own or operate a laser or IPL device.

§ 32-3234 Laser safety fund

The laser safety fund is established consisting of fees collected by the department pursuant to section 32-3233. The department shall administer the fund. Monies in the fund are continuously appropriated.

Article 3 Medical Licensure Compact

§ 32-3241 Medical licensure compact

(Conditionally Rpld.)

The medical licensure compact is enacted into law as follows:

Section 1. Purpose

In order to strengthen access to health care, and in recognition of the advances in the delivery of health care, the member states of the interstate Medical Licensure Compact have allied in common purpose to develop a comprehensive process that complements the existing licensing and regulatory authority of state medical boards and provides a streamlined process that allows physicians to become licensed in multiple states, thereby enhancing the portability of a medical license and ensuring the safety of patients. This compact creates another pathway for licensure and does not otherwise change a state's existing medical practice act. This compact also adopts the prevailing standard for licensure and affirms that the practice of medicine occurs where the patient is located at the time of the physician-patient encounter, and therefore, requires the physician to be under the jurisdiction of the state medical board where the patient is located. State medical boards that participate in the compact retain the jurisdiction to impose an adverse action against a license to practice medicine in that state issued to a physician through the procedures in the compact.

Section 2. Definitions

As used in this compact:

1. "Bylaws" means those bylaws established by the interstate commission pursuant to section 11 of this compact for its governance, or for directing and controlling its actions and conduct.

2. "Commissioner" means the voting representative appointed by each member board pursuant to section 11 of this compact.

3. "Convicted" means a finding by a court that an individual is guilty of a criminal offense through adjudication or entry of a plea of guilt or no contest to the charge by the offender. Evidence of an entry of a conviction of a criminal offense by the court shall be considered final for purposes of disciplinary action by a member board.

4. "Expedited license" means a full and unrestricted medical license granted by a member state to an eligible physician through the process set forth in this compact.

5. "Interstate commission" means the interstate medical licensure compact commission created pursuant to section 11 of this compact.

6. "License" means authorization by a state for a physician to engage in the practice of medicine, which would be unlawful without the authorization.

7. "Medical practice act" means laws and regulations governing the practice of allopathic and osteopathic medicine within a member state.

8. "Member board" means a state agency in a member state that acts in the sovereign interests of the state by protecting the public through licensure, regulation and education of physicians as directed by the state government.

9. "Member state" means a state that has enacted this compact.

10. "Offense" means a felony, gross misdemeanor or crime of moral turpitude.

11. "Physician" means any person who:

(a) Is a graduate of a medical school accredited by the liaison committee on medical education, the commission on osteopathic college accreditation or a medical school listed in the international medical education directory or its equivalent.

(b) Passed each component of the United States medical licensing examination (USMLE) or the comprehensive osteopathic medical licensing examination (COMLEX-USA) within three attempts, or any of its predecessor examinations accepted by a state medical board as an equivalent examination for licensure purposes.

(c) Successfully completed graduate medical education approved by the accreditation council for graduate medical education or the American osteopathic association.

(d) Holds specialty certification or a time-unlimited specialty certificate recognized by the American board of medical specialties or the American osteopathic association's bureau of osteopathic specialists.

(e) Possesses a full and unrestricted license to engage in the practice of medicine issued by a member board.

(f) Has never been convicted, received adjudication, deferred adjudication or community supervision or deferred disposition for any offense by a court of appropriate jurisdiction.

(g) Has never had a license authorizing the practice of medicine subjected to discipline by a licensing agency in any state, federal or foreign jurisdiction, excluding any action related to nonpayment of fees related to a license.

(h) Has never had a controlled substance license or permit suspended or revoked by a state or the United States drug enforcement administration.

(i) Is not under active investigation by a licensing agency or law enforcement authority in any state, federal or foreign jurisdiction.

12. "Practice of medicine" means the clinical prevention, diagnosis or treatment of human disease, injury or condition requiring a physician to obtain and maintain a license in compliance with the medical practice act of a member state.

13. "Rule" means a written statement by the interstate commission promulgated pursuant to section 12 of this compact that is of general applicability, that implements, interprets or prescribes a policy or provision of this compact or an organizational, procedural or practice requirement of the interstate commission, and that has the force and effect of statutory law in a member state, and includes the amendment, repeal or suspension of an existing rule.

14. "State" means any state, commonwealth, district or territory of the United States.

15. "State of principal license" means a member state where a physician holds a license to practice medicine and that has been designated as such by the physician for purposes of registration and participation in the compact.

Section 3. Eligibility

A. A physician must meet the eligibility requirements as prescribed in section 2, paragraph 11 of this compact to receive an expedited license under the terms and provisions of this compact.

B. A physician who does not meet the requirements of section 2, paragraph 11 of this compact may obtain a license to practice medicine in a member state if the individual complies with all laws and requirements, other than the compact, relating to the issuance of a license to practice medicine in that state.

Section 4. Designation of state of principal license

A. A physician shall designate a member state as the state of principal license for purposes of registration for expedited licensure through the compact if the physician possesses a full and unrestricted license to practice medicine in that state and the state is one of the following:

1. The state of primary residence for the physician.

2. The state where at least twenty-five percent of the physician's practice of medicine occurs.

3. The location of the physician's employer.

4. If no state qualifies under paragraph 1, 2 or 3 of this subsection, the state designated as state of residence for purpose of federal income tax.

B. A physician may redesignate a member state as state of principal license at any time, as long as the state meets the requirements in subsection A of this section.

C. The interstate commission is authorized to develop rules to facilitate redesignation of another member state as the state of principal license.

Section 5. Application and issuance of expedited licensure

A. A physician seeking licensure through the compact shall file an application for an expedited license with the member board of the state selected by the physician as the state of principal license.

B. On receipt of an application for an expedited license, the member board within the state selected as the state of principal license shall evaluate whether the physician is eligible for expedited licensure and issue a letter of qualification verifying or denying the physician's eligibility to the interstate commission as follows:

1. Static qualifications, which include verification of medical education, graduate medical education, results of any medical or licensing examination and other qualifications as determined by the interstate commission through rule, shall not be subject to additional primary source verification where already primary source verified by the state of principal license.

2. The member board within the state selected as the state of principal license in the course of verifying eligibility shall perform a criminal background check of an applicant, including the use of the results of fingerprint or other biometric data checks compliant with the requirements of the federal bureau of investigation, with the exception of federal employees who have suitability determination in accordance with 5 Code of Federal Regulations section 731.202.

3. Appeal on the determination of eligibility shall be made to the member state where the application was filed and shall be subject to the law of that state.

C. On verification in subsection B of this section, physicians who are eligible for an expedited license shall complete the registration process established by the interstate commission to receive a license in a member state selected pursuant to subsection A of this section, including the payment of any applicable fees.

D. After receiving verification of eligibility under subsection B of this section and payment of any fees under subsection C of this section, a member board shall issue an expedited license to the physician. This license shall authorize the physician to practice medicine in the issuing state consistent with the medical practice act and all applicable laws and regulations of the issuing member board and member state.

E. An expedited license shall be valid for a period consistent with the licensure period in the member state and in the same manner as required for other physicians holding a full and unrestricted license within the member state.

F. An expedited license obtained though the compact shall be terminated if a physician fails to maintain a license in the state of principal license for a nondisciplinary reason, without redesignation of a new state of principal license.

G. The interstate commission is authorized to develop rules regarding the application process, including payment of any applicable fees, and the issuance of an expedited license.

Section 6. Fees for expedited licensure

A. A member state issuing an expedited license authorizing the practice of medicine in that state may impose a fee for a license issued or renewed through the compact.

B. The interstate commission is authorized to develop rules regarding fees for expedited licenses.

Section 7. Renewal and continued participation

A. A physician seeking to renew an expedited license granted in a member state shall complete a renewal process with the interstate commission if the physician:

1. Maintains a full and unrestricted license in a state of principal license.

2. Has not been convicted, received adjudication, deferred adjudication or community supervision or deferred disposition for any offense by a court of appropriate jurisdiction.

3. Has not had a license authorizing the practice of medicine subject to discipline by a licensing agency in any state, federal or foreign jurisdiction, excluding any action related to nonpayment of fees related to a license.

4. Has not had a controlled substance license or permit suspended or revoked by a state or the United States drug enforcement administration.

B. Physicians shall comply with all continuing professional development or continuing medical education requirements for renewal of a license issued by a member state.

C. The interstate commission shall collect any renewal fees charged for the renewal of a license and distribute the fees to the applicable member board.

D. On receipt of any renewal fees collected pursuant to subsection C of this section, a member board shall renew the physician's license.

E. Physician information collected by the interstate commission during the renewal process will be distributed to all member boards.

F. The interstate commission is authorized to develop rules to address renewal of licenses obtained through the compact.

Section 8. Coordinated information system

A. The interstate commission shall establish a database of all physicians who are licensed or who have applied for licensure under section 5 of this compact.

B. Notwithstanding any other provision of law, member boards shall report to the interstate commission any public action or complaints against a licensed physician who has applied or received an expedited license through the compact.

C. Member boards shall report disciplinary or investigatory information determined as necessary and proper by rule of the interstate commission.

D. Member boards may report any nonpublic complaint or disciplinary or investigatory information not required by subsection C of this section to the interstate commission.

E. Member boards shall share complaint or disciplinary information about a physician on request of another member board.

F. All information provided to the interstate commission or distributed by member boards shall be confidential, filed under seal and used only for investigatory or disciplinary matters.

G. The interstate commission is authorized to develop rules for mandated or discretionary sharing of information by member boards.

Section 9. Joint investigations

A. Licensure and disciplinary records of physicians are deemed investigative.

B. In addition to the authority granted to a member board by its respective medical practice act or other applicable state law, a member board may participate with other member boards in joint investigations of physicians licensed by the member boards.

C. A subpoena issued by a member state shall be enforceable in other member states.

D. Member boards may share any investigative, litigation or compliance materials in furtherance of any joint or individual investigation initiated under the compact.

E. Any member state may investigate actual or alleged violations of the statutes authorizing the practice of medicine in any other member state in which a physician holds a license to practice medicine.

Section 10. Disciplinary actions

A. Any disciplinary action taken by any member board against a physician licensed through this compact shall be deemed unprofessional conduct that may be subject to discipline by other member boards, in addition to any violation of the medical practice act or regulations in that state.

B. If a license granted to a physician by the member board in the state of principal license is revoked, surrendered or relinquished in lieu of discipline, or suspended, then all licenses issued to the physician by member boards shall automatically be placed, without further action necessary by any member board, on the same status. If the member board in the state of principal license subsequently reinstates the physician's license, a license issued to the physician by any other member board shall remain encumbered until that respective member board takes action to reinstate the license in a manner consistent with the medical practice act of that state.

C. If disciplinary action is taken against a physician by a member board not in the state of principal license, any other member board may deem the action conclusive as to matter of law and fact decided, and either:

1. Impose the same or lesser sanctions against the physician so long as such sanctions are consistent with the medical practice act of that state.

2. Pursue separate disciplinary action against the physician under its respective medical practice act, regardless of the action taken in other member states.

D. If a license granted to a physician by a member board is revoked, surrendered or relinquished in lieu of discipline, or suspended, any license issued to the physician by any other member board shall be suspended, automatically and immediately without further action necessary by the other member board, for ninety days on entry of the order by the disciplining board, to permit the member board to investigate the basis for the action under the medical practice act of that state. A member board may terminate the automatic suspension of the license it issued before the completion of the ninety-day suspension period in a manner consistent with the medical practice act of that state.

Section 11. Interstate medical licensure compact commission

A. The member states hereby create the interstate medical licensure compact commission.

B. The purpose of the interstate commission is the administration of the interstate medical licensure compact, which is a discretionary state function.

C. The interstate commission shall be a body corporate and joint agency of the member states and shall have all the responsibilities, powers and duties set forth in this compact, and such additional powers as may be conferred on it by a subsequent concurrent action of the respective legislatures of the member states in accordance with the terms of the compact.

D. The interstate commission shall consist of two voting representatives appointed by each member state who shall serve as commissioners. In states where allopathic and osteopathic physicians are regulated by separate member boards, or if the licensing and disciplinary authority is split between multiple member boards within a member state, the member state shall appoint one representative from each member board. A commissioner shall be one of the following:

1. An allopathic or osteopathic physician appointed to a member board.

2. An executive director, executive secretary or similar executive of a member board.

3. A member of the public appointed to a member board.

E. The interstate commission shall meet at least once each calendar year. A portion of this meeting shall be a business meeting to address such matters as may properly come before the commission, including the election of officers. The chairperson may call additional meetings and shall call a meeting on the request of a majority of the member states.

F. The bylaws may provide for meetings of the interstate commission to be conducted by telecommunication or electronic communication.

G. Each commissioner participating at a meeting of the interstate commission is entitled to one vote. A majority of commissioners shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission. A commissioner shall not delegate a vote to another commissioner. In the absence of its commissioner, a member state may delegate voting authority for a specified meeting to another person from that state who meets the requirements of subsection D of this section.

H. The interstate commission shall provide public notice of all meetings, and all meetings shall be open to the public. The interstate commission may close a meeting, in full or in part, if it determines by a two-thirds vote of the commissioners present that an open meeting would be likely to do any of the following:

1. Relate solely to the internal personnel practices and procedures of the interstate commission.

2. Discuss matters specifically exempted from disclosure by federal statute.

3. Discuss trade secrets or commercial or financial information that is privileged or confidential.

4. Involve accusing a person of a crime or formally censuring a person.

5. Discuss information of a personal nature for which disclosure would constitute a clearly unwarranted invasion of personal privacy.

6. Discuss investigative records compiled for law enforcement purposes.

7. Specifically relate to the participation in a civil action or other legal proceeding.

I. The interstate commission shall keep minutes that shall fully describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, including a record of any roll call votes.

J. The interstate commission shall make its information and official records, to the extent not otherwise designated in this compact or by the commission's rules, available to the public for inspection.

K. The interstate commission shall establish an executive committee, which shall include officers, members and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the interstate commission, with the exception of rulemaking, during periods when the interstate commission is not in session. When acting on behalf of the Interstate commission, the executive committee shall oversee the administration of this compact including enforcement and compliance with the provisions of this compact, its bylaws and rules, and other such duties as necessary.

L. The interstate commission may establish other committees for governance and administration of this compact.

Section 12. Powers and duties of the interstate commission

The interstate commission shall have the duty and power to:

1. Oversee and maintain the administration of the compact.

2. Promulgate rules that are binding to the extent and in the manner provided for in this compact.

3. Issue, on the request of a member state or member board, advisory opinions concerning the meaning or interpretation of this compact, its bylaws, rules and actions.

4. Enforce compliance with compact provisions, the rules promulgated by the interstate commission and the bylaws, using all necessary and proper means, including the use of judicial process.

5. Establish and appoint committees, including an executive committee as required by section 11 of this compact, which shall have the power to act on behalf of the interstate commission in carrying out its powers and duties.

6. Pay, or provide for the payment of, the expenses related to the establishment, organization and ongoing activities of the interstate commission.

7. Establish and maintain one or more offices.

8. Borrow, accept, hire or contract for services of personnel.

9. Purchase and maintain insurance and bonds.

10. Employ an executive director who shall have such powers to employ, select or appoint employees, agents or consultants and to determine their qualifications, define their duties and fix their compensation.

11. Establish personnel policies and programs relating to conflicts of interest, rates of compensation and qualifications of personnel.

12. Accept donations and grants of money, equipment, supplies, materials and services and receive, utilize and dispose of these in a manner consistent with the conflict of interest policies established by the interstate commission.

13. Lease, purchase, accept contributions or donations of, or otherwise own, hold, improve or use, any property, real, personal, or mixed.

14. Sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed.

15. Establish a budget and make expenditures.

16. Adopt a seal and bylaws governing the management and operation of the interstate commission.

17. Report annually to the legislatures and governors of the member states concerning the activities of the interstate commission during the preceding year. Such reports shall also include reports of financial audits and any recommendations that may have been adopted by the interstate commission.

18. Coordinate education, training and public awareness regarding the compact and its implementation and operation.

19. Maintain records in accordance with the bylaws.

20. Seek and obtain trademarks, copyrights and patents.

21. Perform such functions as may be necessary or appropriate to achieve the purposes of this compact.

Section 13. Finance powers

A. The interstate commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the interstate commission and its staff. The total assessment must be sufficient to cover the annual budget approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated on a formula to be determined by the interstate commission, which shall promulgate a rule binding on all member states.

B. The interstate commission shall not incur obligations of any kind before securing the funds adequate to meet the same.

C. The interstate commission shall not pledge the credit of any of the member states, except by, and with the authority of, the member state.

D. The interstate commission shall be subject to a yearly financial audit conducted by a certified or licensed public accountant, and the report of the audit shall be included in the annual report of the interstate commission.

Section 14. Organization and operation of the interstate commission

A. The interstate commission, by a majority of commissioners present and voting, shall adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of this compact within twelve months after the first interstate commission meeting.

B. The interstate commission shall elect or appoint annually from among its commissioners a chairperson, a vice chairperson and a treasurer, each of whom shall have such authority and duties as may be specified in the bylaws. The chairperson or, in the chairperson's absence or disability, the vice chairperson shall preside at all meetings of the interstate commission.

C. Officers selected pursuant to subsection B of this section shall serve without remuneration from the interstate commission.

D. The officers and employees of the interstate commission shall be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of, or relating to, an actual or alleged act, error or omission that occurred, or that such person had a reasonable basis for believing occurred, within the scope of interstate commission employment, duties or responsibilities, except that such a person shall not be protected from suit or liability for damage, loss, injury or liability caused by the person's intentional or wilful and wanton misconduct as follows:

1. The liability of the executive director and an employee of the interstate commission or a representative of the interstate commission, acting within the scope of that person's employment or duties for acts, errors or omissions occurring within that person's state, may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees and agents. The interstate commission is considered to be an instrumentality of the states for the purposes of any such action. This subsection does not protect such a person from suit or liability for damage, loss, injury or liability caused by the person's intentional or wilful and wanton misconduct.

2. The interstate commission shall defend the executive director and the commission's employees and, subject to the approval of the attorney general or other appropriate legal counsel of the member state represented by an interstate commission representative, shall defend such an interstate commission representative in any civil action seeking to impose liability arising out of an actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities, if the actual or alleged act, error or omission did not result from the person's intentional or wilful and wanton misconduct.

3. To the extent not covered by the state involved, the member state or the interstate commission, a representative or employee of the interstate commission shall be held harmless in the amount of a settlement or judgment, including attorney fees and costs, obtained against that person arising out of an actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities or that the person had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities, if the actual or alleged act, error or omission did not result from the person's intentional or wilful and wanton misconduct.

Section 15. Rulemaking functions of the interstate commission

A. The interstate commission shall promulgate reasonable rules in order to effectively and efficiently achieve the purposes of this compact. Notwithstanding the foregoing, if the interstate commission exercises its rulemaking authority in a manner that is beyond the scope of the purposes of this compact, or the powers granted hereunder, such an action by the interstate commission shall be invalid and have no force or effect.

B. Rules deemed appropriate for the operations of the interstate commission shall be made pursuant to a rulemaking process that substantially conforms to the model state administrative procedure act of 2010, and subsequent amendments thereto.

C. Not later than thirty days after a rule is promulgated, any person may file a petition for judicial review of the rule in the United States district court for the District of Columbia or the federal district where the interstate commission has its principal offices, provided that the filing of such a petition shall not stay or otherwise prevent the rule from becoming effective unless the court finds that the petitioner has a substantial likelihood of success. The court shall give deference to the actions of the interstate commission consistent with applicable law and shall not find the rule to be unlawful if the rule represents a reasonable exercise of the authority granted to the interstate commission.

Section 16. Oversight of interstate compact

A. The executive, legislative and judicial branches of state government in each member state shall enforce the compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of the compact and the rules promulgated under the compact shall have standing as statutory law but shall not override existing state authority to regulate the practice of medicine.

B. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of the compact that may affect the powers, responsibilities or actions of the interstate commission.

C. The interstate commission shall be entitled to receive all service of process in any such proceeding and shall have standing to intervene in the proceeding for all purposes. Failure to provide service of process to the interstate commission shall render a judgment or order void as to the interstate commission, the compact or promulgated rules.

Section 17. Enforcement of interstate compact

A. The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

B. The interstate commission, by majority vote of the commissioners, may initiate legal action in the United States district court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its principal offices to enforce compliance with the provisions of this compact and its promulgated rules and bylaws against a member state in default. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees.

C. The remedies herein shall not be the exclusive remedies of the interstate commission. The interstate commission may avail itself of any other remedies available under state law or the regulation of a profession.

Section 18. Default procedures

A. The grounds for default include failure of a member state to perform such obligations or responsibilities imposed on it by this compact or the rules and bylaws of the interstate commission promulgated under this compact.

B. If the interstate commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or the bylaws or promulgated rules, the interstate commission shall:

1. Provide written notice to the defaulting state and other member states of the nature of the default, the means of curing the default and any action taken by the interstate commission. The interstate commission shall specify the conditions by which the defaulting state must cure its default.

2. Provide remedial training and specific technical assistance regarding the default.

C. If the defaulting state fails to cure the default, the defaulting state shall be terminated from this compact on an affirmative vote of a majority of the commissioners, and all rights, privileges, and benefits conferred by this compact shall terminate on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of the default.

D. Termination of membership in this compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to terminate shall be given by the interstate commission to the governor, the majority and minority leaders of the defaulting state's legislature and each of the member states.

E. The interstate commission shall establish rules and procedures to address licenses and physicians that are materially impacted by the termination of a member state or the withdrawal of a member state.

F. The member state that has been terminated is responsible for all dues, obligations and liabilities incurred through the effective date of termination, including obligations, the performance of which extends beyond the effective date of termination.

G. The interstate commission shall not bear any costs relating to any state that has been found to be in default or that has been terminated from this compact, unless otherwise mutually agreed on in writing between the interstate commission and the defaulting state.

H. The defaulting state may appeal the action of the interstate commission by petitioning the United States district court for the District of Columbia or the federal district where the interstate commission has its principal offices. The prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees.

Section 19. Dispute resolution

A. The interstate commission shall attempt, on the request of a member state, to resolve disputes that are subject to this compact and that may arise among member states or member boards.

B. The interstate commission shall promulgate rules providing for both mediation and binding dispute resolution as appropriate.

Section 20. Member states, effective date and amendment

A. Any state is eligible to become a member state of this compact.

B. The compact shall become effective and binding on legislative enactment of this compact into law by no less than seven states. Thereafter, it shall become effective and binding on a state on enactment of this compact into law by that state.

C. The governors of nonmember states, or their designees, shall be invited to participate in the activities of the interstate commission on a nonvoting basis before adoption of this compact by all states.

D. The interstate commission may propose amendments to this compact for enactment by the member states. An amendment shall not become effective and binding on the interstate commission and the member states unless and until it is enacted into law by unanimous consent of the member states.

Section 21. Withdrawal

A. Once effective, this compact shall continue in force and remain binding on each and every member state, except that a member state may withdraw from this compact by specifically repealing the statute that enacted this compact into law.

B. Withdrawal from this compact shall be by the enactment of a statute repealing the same, but shall not take effect until one year after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the governor of each other member state.

C. The withdrawing state shall immediately notify the chairperson of the interstate commission in writing on the introduction of legislation repealing this compact in the withdrawing state.

D. The interstate commission shall notify the other member states of the withdrawing state's intent to withdraw within sixty days of its receipt of notice provided under subsection C of this section.

E. The withdrawing state is responsible for all dues, obligations and liabilities incurred through the effective date of withdrawal, including obligations, the performance of which extend beyond the effective date of withdrawal.

F. Reinstatement following withdrawal of a member state shall occur on the withdrawing state reenacting this compact or on such later date as determined by the interstate commission.

G. The interstate commission is authorized to develop rules to address the impact of the withdrawal of a member state on licenses granted in other member states to physicians who designated the withdrawing member state as the state of principal license.

Section 22. Dissolution

A. This compact shall dissolve effective on the date of the withdrawal or default of the member state that reduces the membership in the compact to one member state.

B. On the dissolution of this compact, the compact becomes void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be concluded and surplus funds shall be distributed in accordance with the bylaws.

Section 23. Severability and construction

A. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of this compact shall be enforceable.

B. The provisions of this compact shall be liberally construed to effectuate its purposes.

C. This compact shall not be construed to prohibit the applicability of other interstate compacts to which the states are members.

Section 24. Binding effect of compact and other laws

A. Nothing in this compact prevents the enforcement of any other law of a member state that is not inconsistent with this compact.

B. All laws in a member state in conflict with this compact are superseded to the extent of the conflict.

C. All lawful actions of the interstate commission, including all rules and bylaws promulgated by the commission, are binding on the member states.

D. All agreements between the interstate commission and the member states are binding in accordance with their terms.

E. If any provision of this compact exceeds the constitutional limits imposed on the legislature of any member state, such provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.

§ 32-3242 Subpoenas from member boards or courts in member states

(Conditionally Rpld.)

A subpoena issued pursuant to section 32-3241, section 9 for the attendance and testimony of witnesses or the production of evidence from this state shall be enforced by any court of competent jurisdiction in this state according to that court's practice and procedure in considering subpoenas issued in the court's own proceedings.

§ 32-3243 Participation in compact as condition of employment; prohibition

(Conditionally Rpld.)

An employer may not require a physician to seek licensure through the medical licensure compact enacted by section 32-3241 as a condition of initial or continued employment as an allopathic or osteopathic physician in this state. An employer may require that a physician obtain and maintain a license to practice allopathic or osteopathic medicine in multiple states, if the physician is free to obtain and maintain the licenses by any means authorized by the laws of the respective states.

§ 32-3244 Open meeting requirements

(Conditionally Rpld.)

If a meeting, or a portion of a meeting, of the interstate commission is closed pursuant to section 32-3241, section 11, subsection H, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision consistent with title 38, chapter 3, article 3.1. The commission shall keep minutes that fully and clearly describe all matters discussed in the meeting and shall provide a full and accurate summary of actions taken and the reasons for those actions, including a description of the views expressed. All documents considered in connection with an action shall be identified in these minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the commission or an order of a court of competent jurisdiction.

§ 32-3245 Arizona medical board; Arizona board of osteopathic examiners in medicine and surgery; notice of commission actions; expenditure of certain monies prohibited

(Conditionally Rpld.)

The Arizona medical board and the Arizona board of osteopathic examiners in medicine and surgery:

1. Within thirty days after an interstate commission action shall post on the board's public website notice of any commission action that may affect a physician's license.

2. May not spend any monies received from physicians or applicants for licensure who are not applying for licensure through this compact on any activities, obligations or duties required by this compact.

§ 32-3246 Conditional repeal; notification; withdrawal from compact; request for review

(Conditionally Rpld.)

A. This article is repealed if either of the following occurs:

1. The interstate medical licensure compact commission created pursuant to section 32-3241, section 11 issues a rule or decision that would change the scope of practice of or the definition of unprofessional conduct for a physician licensed pursuant to chapter 13 or 17 of this title inconsistent with title 36, chapter 20, article 1 or any other statute relating to abortion as defined in section 36-2151.

2. A court issues a ruling relating to the enforcement of the medical licensure compact enacted by section 32-3241 that would change the scope of practice of or the definition of unprofessional conduct for a physician licensed pursuant to chapter 13 or 17 of this title inconsistent with title 36, chapter 20, article 1 or any other statute relating to abortion as defined in section 36-2151.

B. The attorney general shall notify in writing the director of the Arizona legislative council of the date on which either of the actions described in subsection A of this section occurs.

C. The repeal of this article pursuant to this section constitutes this state's immediate withdrawal from the medical licensure compact enacted by section 32-3241. The attorney general shall send written notification to the governor of each other state that has enacted this compact.

D. Any resident of this state or member of the legislature may request in writing that the attorney general review the actions of the interstate medical licensure compact commission or a court ruling relating to the enforcement of the medical licensure compact enacted by section 32-3241 consistent with this section.

Article 4 Controlled Substances

§ 32-3248 Health professionals; controlled substances; initial prescriptions; limits; exceptions; definition

A. A health professional who is authorized under this title to prescribe controlled substances shall limit the initial prescription for a patient for a schedule II controlled substance that is an opioid to not more than a five-day supply, except that an initial prescription for a schedule II controlled substance that is an opioid following a surgical procedure is limited to not more than a fourteen-day supply.

B. Subsection A of this section does not apply to initial prescriptions if the patient:

1. Has an active oncology diagnosis.

2. Has a traumatic injury, not including a surgical procedure.

3. Is receiving hospice care.

4. Is receiving end-of-life care.

5. Is receiving palliative care.

6. Is receiving skilled nursing facility care.

7. Is receiving treatment for burns.

8. Is receiving medication-assisted treatment for a substance use disorder.

9. Is an infant who is being weaned off opioids at the time of hospital discharge.

C. If a health professional's prescribing authority under the relevant chapter of this title for schedule II controlled substances is more restrictive than the limit specified in subsection A of this section, the health professional's prescribing authority under the relevant chapter of this title applies.

D. An initial prescription for a schedule II controlled substance that is an opioid that is written for more than a five-day supply is deemed to meet the requirements of an exemption under this section when the initial prescription is presented to the dispenser. A pharmacist is not required to verify with the prescriber whether the initial prescription complies with this section.

E. For the purposes of this section, "initial prescription" means a prescription for a schedule II controlled substance that is an opioid that has not covered any portion of the past sixty days before the date the pharmacy dispenses the current prescription as evidenced by the controlled substances prescription monitoring program's central database tracking system.

§ 32-3248.01 Schedule II controlled substances; dosage limit; exceptions; morphine; opioid antagonist; definitions

A. A health professional who is authorized under this title to prescribe controlled substances may not issue a new prescription to be filled or dispensed for a patient outside of a health care institution for a schedule II controlled substance that is an opioid that exceeds ninety morphine milligram equivalents per day.

B. The limit prescribed by subsection A of this section does not apply to:

1. A continuation of a prior prescription that was issued within the previous sixty days.

2. An opioid with a maximum approved total daily dose in the labeling as approved by the United States food and drug administration.

3. A prescription that is issued following a surgical procedure and that is limited to not more than a fourteen-day supply.

4. A patient who:

(a) Has an active oncology diagnosis.

(b) Has a traumatic injury.

(c) Is receiving hospice care.

(d) Is receiving end-of-life care.

(e) Is receiving palliative care.

(f) Is receiving skilled nursing facility care.

(g) Is receiving treatment for burns.

(h) Is receiving medication-assisted treatment for a substance use disorder.

(i) Is hospitalized.

(j) Has chronic intractable pain.

(k) Is receiving opioid treatment for perioperative care following an inpatient surgical procedure.

C. If a health professional believes that a patient requires more than ninety morphine milligram equivalents per day and the patient is not exempt from the limit pursuant to subsection B of this section, the health professional shall first consult with a physician who is licensed pursuant to chapter 13 or 17 of this title and who is board-certified in pain, or an opioid assistance and referral call service, if available, that is designated by the department of health services. The consultation may be done by telephone or through telehealth. If the opioid assistance and referral call service agrees with the higher dose, the health professional may issue a prescription for more than ninety morphine milligram equivalents per day. If the consulting physician agrees with the higher dose, the health professional may issue a prescription for more than ninety morphine milligram equivalents per day. If the consulting physician is not available to consult within forty-eight hours after the request, the health professional may prescribe the amount that the health professional believes the patient requires and subsequently have the consultation. If the health professional is a physician who is licensed pursuant to chapter 13 or 17 of this title and is board-certified in pain, the health professional may issue a prescription for more than ninety morphine milligram equivalents per day without a consultation under this subsection.

D. If a patient is prescribed more than ninety morphine milligram equivalents per day pursuant to subsection B or C of this section, the prescribing health professional shall also prescribe for the patient naloxone hydrochloride or any other opioid antagonist that is approved by the United States food and drug administration to treat opioid-related overdoses.

E. The ninety morphine milligram equivalents per day limit prescribed in this section does not apply to a patient with chronic intractable pain once the patient has an established health professional-patient relationship and the patient has tried doses of less than ninety morphine milligram equivalents that have been ineffective at addressing the patient's pain.

F. A prescription for a schedule II controlled substance that is an opioid that is written for more than ninety morphine milligram equivalents per day is deemed to meet the requirements of an exemption under this section when the prescription is presented to the dispenser. A pharmacist is not required to verify with the prescriber whether the prescription complies with this section.

G. For the purposes of this section:

1. "Chronic intractable pain" means pain that meets both of the following:

(a) Is excruciating, constant, incurable and of such severity that it dominates virtually every conscious moment.

(b) Produces mental and physical debilitation.

2. "Established health professional-patient relationship" means that all of the following have occurred:

(a) A patient has physically presented to a health professional with a medical complaint.

(b) The health professional has taken a medical history of the patient.

(c) The health professional has performed a physical examination of the patient.

(d) Some logical connection exists between the medical complaint, the medical history, the physical examination and the drug prescribed.

§ 32-3248.02 Health professionals; substance use or addiction continuing education

A health professional who is authorized under this title to prescribe schedule II controlled substances and who has a valid United States drug enforcement administration registration number or who is authorized under chapter 18 of this title to dispense controlled substances shall complete a minimum of three hours of opioid-related, substance use disorder-related or addiction-related continuing education each license renewal cycle. The three hours of continuing medical education or accredited continuing education that is approved by the applicable health profession regulatory board shall be included as part of any continuing education requirements for that health professional.

§ 32-3248.03 Health professionals; hospitals; dispensing controlled substances; opioids; definition

A. A hospital or a health professional who is working in a hospital that is not within fifty miles of a twenty-four-hour pharmacy, when discharging a patient with an acute illness or injury after regular pharmacy business hours, may dispense a twelve-hour supply of a schedule II controlled substance that is an opioid to the patient.

B. For the purposes of this section, "health professional" means a person who is licensed pursuant to chapter 7, 13, 15, 17 or 25 of this title and who holds a valid United States drug enforcement administration registration number.

Article 5 Health Professionals Workforce Database

§ 32-3249 Definitions

In this article, unless the context otherwise requires:

1. "Board" means a health profession regulatory board that provides licensure, certification or registration and regulation pursuant to chapter 13, 15, 17, 19, 19.1 or 33 of this title.

2. "Database" means the health professionals workforce database that is developed from designated database information and maintained by the department in the health care professionals workforce data repository established pursuant to title 36, chapter 1, article 3.

3. "Department" means the department of health services.

4. "Designated database information":

(a) Means information that is collected by a board pursuant to section 32-3247.01.

(b) Does not include identification materials and information required to determine qualifications of an applicant for licensure, certification or registration.

5. "Director" means the director of the department.

§ 32-3249.01 Designated database information; collection; transfer; confidentiality

A. Beginning January 2, 2021, each board shall request from applicants for initial or renewal licensure, certification or registration or otherwise on an annual basis the designated database information prescribed in rule by the director pursuant to section 36-104. Each board shall transfer the designated database information to the department on an annual basis.

B. To protect the privacy and security of health professionals who provide information pursuant to this section, the information unique to the designated database that is collected pursuant to this section is confidential and is not a public record pursuant to title 39, chapter 1, article 2 and may be distributed, redistributed or transferred only pursuant to subsection C of this section and title 36, chapter 1, article 3.

C. Each board may maintain and use but may not distribute the data collected pursuant to this section that is unique to the designated database, except a university under the jurisdiction of the Arizona board of regents may request and the health profession regulatory board may distribute designated database information collected by the health profession regulatory board, including personally identifiable information. The university may redistribute the designated database information received from the board only if both of the following apply:

1. The data is deidentified pursuant to the published standards of the United States department of health and human services.

2. The data is incorporated in research and analysis by the university that is generated using the data.

Chapter 33 Behavioral Health Professionals

Article 1 Board of Behavioral Health Examiners

§ 32-3251 Definitions

In this chapter, unless the context otherwise requires:

1. "Board" means the board of behavioral health examiners.

2. "Client" means a patient who receives behavioral health services from a person licensed pursuant to this chapter.

3. "Direct client contact" means the performance of therapeutic or clinical functions related to the applicant's professional practice level of psychotherapy that includes diagnosis, assessment and treatment and that may include psychoeducation for mental, emotional and behavioral disorders based primarily on verbal or nonverbal communications and intervention with, and in the presence of, one or more clients, including through the use of telehealth pursuant to title 36, chapter 36, article 1.

4. "Equivalent" means comparable in content and quality but not identical.

5. "Indirect client service":

(a) Means training for, and the performance of, functions of an applicant's professional practice level in preparation for or on behalf of a client for whom direct client contact functions are also performed, including case consultation and receipt of clinical supervision.

(b) Does not include the provision of psychoeducation.

6. "Letter of concern" means a nondisciplinary written document sent by the board to notify a licensee that, while there is insufficient evidence to support disciplinary action, the board believes that continuation of the activities that led to the investigation may result in further board action against the licensee.

7. "Licensee" means a person who is licensed pursuant to this chapter.

8. "Practice of addiction counseling":

(a) Means the professional application of general counseling theories, principles and techniques as specifically adapted, based on research and clinical experience, to the specialized needs and characteristics of persons who are experiencing an addiction that is a persistent, compulsive dependence on a behavior or substance, including mood-altering behaviors or activities known as process addictions, and related problems and to the families of those persons.

(b) Includes the following:

(i) Assessment, appraisal and diagnosis.

(ii) The use of psychotherapy for the purpose of evaluation, diagnosis and treatment of individuals, couples, families and groups.

9. "Practice of behavioral health" means the practice of marriage and family therapy, practice of professional counseling, practice of social work and practice of addiction counseling pursuant to this chapter.

10. "Practice of marriage and family therapy" means the professional application of family systems theories, principles and techniques to treat interpersonal relationship issues and nervous, mental and emotional disorders that are cognitive, affective or behavioral. The practice of marriage and family therapy includes:

(a) Assessment, appraisal and diagnosis.

(b) The use of psychotherapy for the purpose of evaluation, diagnosis and treatment of individuals, couples, families and groups.

11. "Practice of professional counseling" means the professional application of mental health, psychological and human development theories, principles and techniques to:

(a) Facilitate human development and adjustment throughout the human life span.

(b) Assess and facilitate career development.

(c) Treat interpersonal relationship issues and nervous, mental and emotional disorders that are cognitive, affective or behavioral.

(d) Manage symptoms of mental illness.

(e) Assess, appraise, evaluate, diagnose and treat individuals, couples, families and groups through the use of psychotherapy.

12. "Practice of social work" means the professional application of social work theories, principles, methods and techniques to:

(a) Treat mental, behavioral and emotional disorders.

(b) Assist individuals, families, groups and communities to enhance or restore the ability to function physically, socially, emotionally, mentally and economically.

(c) Assess, appraise, diagnose, evaluate and treat individuals, couples, families and groups through the use of psychotherapy.

13. "Psychoeducation" means the education of a client as part of a treatment process that provides the client with information regarding mental health, emotional disorders or behavioral health.

14. "Psychotherapy" means a variety of treatment methods developing out of generally accepted theories about human behavior and development.

15. "Telehealth" has the same meaning prescribed in section 36-3601.

16. "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere:

(a) Being convicted of a felony. Conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the conviction.

(b) Using fraud or deceit in connection with rendering services as a licensee or in establishing qualifications pursuant to this chapter.

(c) Making any oral or written misrepresentation of a fact:

(i) To secure or attempt to secure the issuance or renewal of a license.

(ii) In any statements provided during an investigation or disciplinary proceeding by the board.

(iii) Regarding the licensee's skills or the value of any treatment provided or to be provided.

(d) Making any false, fraudulent or deceptive statement connected with the practice of behavioral health, including false or misleading advertising by the licensee or the licensee's staff or a representative compensated by the licensee.

(e) Securing or attempting to secure the issuance or renewal of a license by knowingly taking advantage of the mistake of another person or the board.

(f) Engaging in active habitual intemperance in the use of alcohol or active habitual substance abuse.

(g) Using a controlled substance that is not prescribed for use during a prescribed course of treatment.

(h) Obtaining a fee by fraud, deceit or misrepresentation.

(i) Aiding or abetting a person who is not licensed pursuant to this chapter to purport to be a licensed behavioral health professional in this state.

(j) Engaging in conduct that the board determines is gross negligence or repeated negligence in the licensee's profession.

(k) Engaging in any conduct or practice that is contrary to recognized standards of ethics in the behavioral health profession or that constitutes a danger to the health, welfare or safety of a client.

(l) Engaging in any conduct, practice or condition that impairs the ability of the licensee to safely and competently practice the licensee's profession.

(m) Engaging or offering to engage as a licensee in activities that are not congruent with the licensee's professional education, training or experience.

(n) Failing to comply with or violating, attempting to violate or assisting in or abetting the violation of any provision of this chapter, any rule adopted pursuant to this chapter, any lawful order of the board, or any formal order, consent agreement, term of probation or stipulated agreement issued under this chapter.

(o) Failing to furnish information within a specified time to the board or its investigators or representatives if legally requested by the board.

(p) Failing to conform to minimum practice standards as developed by the board.

(q) Failing or refusing to maintain adequate records of behavioral health services provided to a client.

(r) Providing behavioral health services that are clinically unjustified or unsafe or otherwise engaging in activities as a licensee that are unprofessional by current standards of practice.

(s) Terminating behavioral health services to a client without making an appropriate referral for continuation of care for the client if continuing behavioral health services are indicated.

(t) Disclosing a professional confidence or privileged communication except as may otherwise be required by law or allowed by a legally valid written release.

(u) Failing to allow the board or its investigators on demand to examine and have access to documents, reports and records in any format maintained by the licensee that relate to the licensee's practice of behavioral health.

(v) Engaging in any sexual conduct between a licensee and a client or former client.

(w) Providing behavioral health services to any person with whom the licensee has had sexual contact.

(x) Exploiting a client, former client or supervisee. For the purposes of this subdivision, "exploiting" means taking advantage of a professional relationship with a client, former client or supervisee for the benefit or profit of the licensee.

(y) Engaging in a dual relationship with a client that could impair the licensee's objectivity or professional judgment or create a risk of harm to the client. For the purposes of this subdivision, "dual relationship" means a licensee simultaneously engages in both a professional and nonprofessional relationship with a client that is avoidable and not incidental.

(z) Engaging in physical contact between a licensee and a client if there is a reasonable possibility of physical or psychological harm to the client as a result of that contact.

(aa) Sexually harassing a client, former client, research subject, supervisee or coworker. For the purposes of this subdivision, "sexually harassing" includes sexual advances, sexual solicitation, requests for sexual favors, unwelcome comments or gestures or any other verbal or physical conduct of a sexual nature.

(bb) Harassing, exploiting or retaliating against a client, former client, research subject, supervisee, coworker or witness or a complainant in a disciplinary investigation or proceeding involving a licensee.

(cc) Failing to take reasonable steps to inform potential victims and appropriate authorities if the licensee becomes aware during the course of providing or supervising behavioral health services that a client's condition indicates a clear and imminent danger to the client or others.

(dd) Failing to comply with the laws of the appropriate licensing or credentialing authority to provide behavioral health services by electronic means in all governmental jurisdictions where the client receiving these services resides.

(ee) Giving or receiving a payment, kickback, rebate, bonus or other remuneration for a referral.

(ff) Failing to report in writing to the board information that would cause a reasonable licensee to believe that another licensee is guilty of unprofessional conduct or is physically or mentally unable to provide behavioral health services competently or safely. This duty does not extend to information provided by a licensee that is protected by the behavioral health professional-client privilege unless the information indicates a clear and imminent danger to the client or others or is otherwise subject to mandatory reporting requirements pursuant to state or federal law.

(gg) Failing to follow federal and state laws regarding the storage, use and release of confidential information regarding a client's personal identifiable information or care.

(hh) Failing to retain records pursuant to section 12-2297.

(ii) Violating any federal or state law, rule or regulation applicable to the practice of behavioral health.

(jj) Failing to make client records in the licensee's possession available in a timely manner to another health professional or licensee on receipt of proper authorization to do so from the client, a minor client's parent, the client's legal guardian or the client's authorized representative.

(kk) Failing to make client records in the licensee's possession promptly available to the client, a minor client's parent, the client's legal guardian or the client's authorized representative on receipt of proper authorization to do so from the client, the minor client's parent, the client's legal guardian or the client's authorized representative.

(ll) Being the subject of the revocation, suspension, surrender or any other disciplinary sanction of a professional license, certificate or registration or other adverse action related to a professional license, certificate or registration in another jurisdiction or country, including the failure to report the adverse action to the board. The action taken may include refusing, denying, revoking or suspending a license or certificate, the surrendering of a license or certificate, otherwise limiting, restricting or monitoring a licensee or certificate holder or placing a licensee or certificate holder on probation.

(mm) Engaging in any conduct that results in a sanction imposed by an agency of the federal government that involves restricting, suspending, limiting or removing the licensee's ability to obtain financial remuneration for behavioral health services.

(nn) Violating the security of any licensure examination materials.

(oo) Using fraud or deceit in connection with taking or assisting another person in taking a licensure examination.

§ 32-3252 Board of behavioral health examiners; appointment; qualifications; terms; compensation; immunity; training program

A. The board of behavioral health examiners is established consisting of the following members appointed by the governor:

1. The following professional members:

(a) Two members who are licensed in social work pursuant to this chapter, at least one of whom is a licensed clinical social worker.

(b) Two members who are licensed in counseling pursuant to this chapter, at least one of whom is a licensed professional counselor.

(c) Two members who are licensed in marriage and family therapy pursuant to this chapter, at least one of whom is a licensed marriage and family therapist.

(d) Two members who are licensed in addiction counseling pursuant to this chapter, at least one of whom is a licensed independent addiction counselor.

2. Four public members.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. Each professional board member shall:

1. Be a resident of this state for at least one year before appointment.

2. Be an active licensee in good standing.

3. Have at least five years of experience in an area of behavioral health licensed pursuant to this chapter.

D. Each public board member shall:

1. Be a resident of this state for at least one year before appointment.

2. Be at least twenty-one years of age.

3. Not be licensed or eligible for licensure pursuant to this chapter unless the public member has been retired from active practice for at least five years.

4. Not currently have a substantial financial interest in an entity that directly provides behavioral health services.

5. Not have a household member who is licensed or eligible for licensure pursuant to this chapter unless the household member has been retired from active practice for at least five years.

E. The term of office of board members is three years to begin and end on the third Monday in January. A member shall not serve more than two full consecutive terms.

F. The board shall annually elect a chairman and secretary-treasurer from its membership.

G. Board members are eligible to receive compensation of not more than $85 for each day actually and necessarily spent in the performance of their duties.

H. Board members and personnel are personally immune from suit with respect to all acts done and actions taken in good faith and in furtherance of the purposes of this chapter.

I. Each board member must complete a twelve-hour training program that emphasizes responsibilities for administrative management, licensure, judicial processes and temperament within one year after appointment to the board.

§ 32-3253 Powers and duties; committee on executive director selection and retention

A. The board shall:

1. Adopt rules consistent with and necessary or proper to carry out the purposes of this chapter.

2. Administer and enforce this chapter, rules adopted pursuant to this chapter and orders of the board.

3. Issue a license by examination, endorsement or temporary recognition to, and renew the license of, each person who is qualified to be licensed pursuant to this chapter. The board must issue or deny a license within one hundred eighty days after the applicant submits a completed application.

4. Establish fees by rule, except that the board is exempt from the rulemaking requirements of title 41, chapter 6 for the purposes of reducing or eliminating fees.

5. Collect fees and spend monies.

6. Keep a record of all persons who are licensed pursuant to this chapter, actions taken on all applications for licensure, actions involving renewal, suspension, revocation or denial of a license or probation of licensees and the receipt and disbursal of monies.

7. Adopt an official seal for attestation of licensure and other official papers and documents.

8. Conduct investigations and determine on its own motion whether a licensee or an applicant has engaged in unprofessional conduct, is incompetent or is mentally or physically unable to engage in the practice of behavioral health.

9. Conduct disciplinary actions pursuant to this chapter and board rules.

10. Establish and enforce standards or criteria of programs or other mechanisms to ensure the continuing competence of licensees.

11. Establish and enforce compliance with professional standards and rules of conduct for licensees.

12. Engage in a full exchange of information with the licensing and disciplinary boards and professional associations for behavioral health professionals in this state and other jurisdictions.

13. Subject to section 35-149, accept, expend and account for gifts, grants, devises and other contributions, money or property from any public or private source, including the federal government. Monies received under this paragraph shall be deposited, pursuant to sections 35-146 and 35-147, in special funds for the purpose specified, which are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

14. Adopt rules regarding the application for and approval of educational curricula of regionally accredited colleges or universities with a program not otherwise accredited by an organization or entity recognized by the board that are consistent with the requirements of this chapter and maintain a list of those programs. Approvals are valid for a period of five years if no changes of curricula are made that are inconsistent with the requirements of this chapter or board rule.

15. Maintain a registry of licensees who have met the educational requirements to provide supervision as required pursuant to this chapter to applicants in the same profession.

16. Adopt rules to allow approval of persons who wish to provide supervision pursuant to this chapter and who are not licensed by the board and who are licensed in a profession other than the profession in which the applicant is seeking licensure.

17. Recognize not more than four hundred hours of psychoeducation for work experience required pursuant to sections 32-3293, 32-3301, 32-3311 and 32-3321.

18. Adopt rules regarding the use of telehealth.

19. If an applicant is required to pass an examination for licensure, allow the applicant to take the examination three times during a twelve-month period.

B. The board may join professional organizations and associations organized exclusively to promote the improvement of the standards of the practice of behavioral health, protect the health and welfare of the public or assist and facilitate the work of the board.

C. The board may enter into stipulated agreements with a licensee for the confidential treatment, rehabilitation and monitoring of chemical dependency or psychiatric, psychological or behavioral health disorders in a program provided pursuant to subsection D of this section. A licensee who materially fails to comply with a program shall be terminated from the confidential program. Any records of the licensee who is terminated from a confidential program are no longer confidential or exempt from the public records law, notwithstanding any law to the contrary. Stipulated agreements are not public records if the following conditions are met:

1. The licensee voluntarily agrees to participate in the confidential program.

2. The licensee complies with all treatment requirements or recommendations, including participation in approved programs.

3. The licensee refrains from professional practice until the return to practice has been approved by the treatment program and the board.

4. The licensee complies with all monitoring requirements of the stipulated agreement, including random bodily fluid testing.

5. The licensee's professional employer is notified of the licensee's chemical dependency or medical, psychiatric, psychological or behavioral health disorders and participation in the confidential program and is provided a copy of the stipulated agreement.

D. The board shall establish a confidential program for the monitoring of licensees who are chemically dependent or who have psychiatric, psychological or behavioral health disorders that may impact their ability to safely practice and who enroll in a rehabilitation program that meets the criteria prescribed by the board. The licensee is responsible for the costs associated with rehabilitative services and monitoring. The board may take further action if a licensee refuses to enter into a stipulated agreement or fails to comply with the terms of a stipulated agreement. In order to protect the public health and safety, the confidentiality requirements of this subsection do not apply if a licensee does not comply with the stipulated agreement.

E. The board shall audio record all meetings and maintain all audio and video recordings or stenographic records of interviews and meetings for a period of three years from when the record was created.

F. The committee on executive director selection and retention is established consisting of the members of the board of behavioral health examiners and the chairperson and vice chairperson of the board of massage therapy. The committee is a public body and is subject to the requirements of title 38, chapter 3, article 3.1. The committee is responsible for appointing the executive director pursuant to section 32-3255. All members of the committee are voting members. The committee shall elect a chairperson and a vice chairperson. The chairperson shall call meetings of the committee as necessary and, if the chairperson is not available, the vice chairperson may call meetings of the committee as necessary. The committee meetings may be held using communications equipment that allows all members who are participating in the meeting to hear each other. If any discussions occur in an executive session of the committee, notwithstanding the requirement that discussions made at an executive session be kept confidential as specified in section 38-431.03, the chairperson and vice chairperson of the board of massage therapy may discuss this information with the members of the board of massage therapy in executive session. This disclosure of executive session information to the members of the board of massage therapy does not constitute a waiver of confidentiality or any privilege, including the attorney-client privilege.

§ 32-3254 Board of behavioral health examiners fund

(L24, Ch. 222, sec. 41. Eff. until 7/1/28)

A. The board of behavioral health examiners fund is established. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies received by the board in the state general fund and deposit the remaining eighty-five percent in the board of behavioral health examiners fund.

B. All monies deposited in the board of behavioral health examiners fund are subject to section 35-143.01.

§ 32-3254 (Version 2) Board of behavioral health examiners fund

(L24, Ch. 222, sec. 42. Eff. 7/1/28)

A. The board of behavioral health examiners fund is established. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies received by the board in the state general fund and deposit the remaining ninety percent in the board of behavioral health examiners fund.

B. All monies deposited in the board of behavioral health examiners fund are subject to section 35-143.01.

§ 32-3255 Executive director; compensation; duties

A. Subject to title 41, chapter 4, article 4, the committee on executive director selection and retention established by section 32-3253 shall appoint an executive director who serves at the pleasure of the committee. The executive director is eligible to receive compensation set by the board within the range determined under section 38-611.

B. The executive director shall:

1. Perform the administrative duties of the board.

2. Subject to title 41, chapter 4, article 4, employ personnel as the executive director deems necessary, including professional consultants and agents necessary to conduct investigations. An investigator must complete a nationally recognized investigator training program within one year after the date of hire. Until the investigator completes this training program, the investigator must work under the supervision of an investigator who has completed a training program.

§ 32-3256 Executive director; complaints; dismissal; review

A. If delegated by the board, the executive director may dismiss a complaint if the investigative staff's review indicates that the complaint is without merit and that dismissal is appropriate.

B. At each regularly scheduled board meeting, the executive director shall provide to the board a list of each complaint the executive director dismissed pursuant to subsection A of this section since the last board meeting.

C. A person who is aggrieved by an action taken by the executive director pursuant to subsection A of this section may file a written request that the board review that action. The request must be filed within thirty-five days after that person is provided written notification of the executive director's action. At the next regular board meeting, the board shall review the executive director's action and, on review, shall approve, modify or reject the executive director's action.

§ 32-3257 Written notifications and communications; methods of transmission

For the purposes of this chapter, notifications or communications required to be written or in writing may be transmitted or received by mail, electronic transmission, facsimile transmission or hand delivery and shall not be transmitted or received orally.

Article 2 Academic Review Committees

§ 32-3261 Academic review committees; members; appointment; qualifications; terms; compensation; immunity; training

A. The board shall establish an academic review committee for each professional area licensed pursuant to this chapter to do the following:

1. Review applications referred to the committee by the board or the executive director to determine whether an applicant, whose curriculum has not been approved pursuant to section 32-3253, subsection A, paragraph 14 or whose program is not accredited by an organization or entity approved by the board, has met the educational requirements of this chapter or board rules.

2. On referral by the executive director, make recommendations to the board regarding whether an applicant has met the requirements of supervised work experience required for licensure pursuant to this chapter or board rules.

3. Make specific findings concerning an application's deficiencies.

4. Review applications and make recommendations to the board for curriculum approval applications made pursuant to section 32-3253, subsection A, paragraph 14.

5. At the request of the board, make recommendations regarding examinations required pursuant to this chapter.

6. Review applications for and make determinations regarding exemptions related to clinical supervision requirements.

B. If an application is referred to an academic review committee for review and the academic review committee finds that additional information is needed from the applicant, the academic review committee shall provide a comprehensive written request for additional information to the applicant.

C. An academic review committee shall be composed of three members who have been residents of this state for at least one year before appointment, at least one of whom is licensed in the professional area pursuant to this chapter and have five years of experience in the applicable profession. At least one member must have served within the previous ten years as core or full-time faculty at a regionally accredited college or university in a program related to the applicable profession and have experience in the design and development of the curriculum of a related program. If qualified, a faculty member may serve on more than one academic review committee. A board member may not be appointed to serve on an academic review committee.

D. Committee members shall initially be appointed by the board. From and after January 1, 2016, the governor shall appoint the committee members. A committee member who is initially appointed by the board may be reappointed by the governor. A committee member who is initially appointed by the board shall continue to serve until appointed or replaced by the governor.

E. Committee members serve at the pleasure of the governor for terms of three years. A member shall not serve more than two full consecutive terms.

F. Committee members are eligible to receive compensation of not more than eighty-five dollars for each day actually and necessarily spent in the performance of their duties.

G. An academic review committee shall annually elect a chairman and secretary from its membership.

H. Committee members are personally immune from suit with respect to all acts done and actions taken in good faith and in furtherance of the purposes of this chapter.

I. Committee members shall receive at least five hours of training as prescribed by the board within one year after the member is initially appointed and that includes instruction in ethics and open meeting requirements.

Article 3 Licensure

§ 32-3271 Exceptions to licensure; jurisdiction

A. This chapter does not apply to:

1. A person who is currently licensed, certified or regulated pursuant to another chapter of this title and who provides services within the person's scope of practice if the person does not claim to be licensed pursuant to this chapter.

2. A person who is not a resident of this state if the person:

(a) Performs behavioral health services in this state for not more than ninety days in any one calendar year as prescribed by board rule.

(b) Is authorized to perform these services pursuant to the laws of the state or country in which the person resides or pursuant to the laws of a federally recognized Indian tribe.

(c) Informs the client of the limited nature of these services and that the person is not licensed in this state.

3. A rabbi, priest, minister or member of the clergy of any religious denomination or sect if the activities and services that person performs are within the scope of the performance of the regular or specialized ministerial duties of an established and legally recognizable church, denomination or sect and the person performing the services remains accountable to the established authority of the church, denomination or sect.

4. A member-run self-help or self-growth group if no member of the group receives direct or indirect financial compensation.

5. A behavioral health technician or behavioral health paraprofessional who is employed by an agency licensed by the department of health services.

6. A person contracting with the supreme court or a person employed by or contracting with an agency under contract with the supreme court who is otherwise ineligible to be licensed or who is in the process of applying to be licensed under this chapter as long as that person is in compliance with the supreme court contract conditions regarding professional counseling services and practices only under supervision.

7. A person who is employed by the department of economic security or the department of child safety and who practices social work, marriage and family therapy, addiction counseling, counseling and case management within the scope of the person's job duties and under direct supervision by the employer department.

8. A student, intern or trainee who is pursuing a course of study in social work, counseling, marriage and family therapy, addiction counseling or case management in a regionally accredited institution of higher education or training institution if the person's activities are performed under qualified supervision and are part of the person's supervised course of study.

9. A person who is practicing social work, counseling and case management and who is employed by an agency licensed by the department of economic security or the department of child safety.

10. A paraprofessional who is employed by the department of economic security or by an agency licensed by the department of economic security.

11. A Christian Science practitioner if all of the following are true:

(a) The person is not providing psychotherapy.

(b) The activities and services the person performs are within the scope of the performance of the regular or specialized duties of a Christian Science practitioner.

(c) The person remains accountable to the established authority of the practitioner's church.

12. A person who is not providing psychotherapy.

13. For a period of ninety days, a person who has completed the person's course of study in social work, counseling, marriage and family therapy or addiction counseling from a regionally accredited institution of higher education, who has graduated, who possesses a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1 and who is in the process of applying for an associate level license pursuant to this chapter if the person's activities are performed under qualified supervision by a person who provided direct supervision during the course of study or internship. The person may apply any direct client contact work experience obtained during the ninety-day period while the person's application is pending toward the person's direct client contact work experience licensure requirements.

B. A person who provides services pursuant to subsection A, paragraph 2 of this section is deemed to have agreed to the jurisdiction of the board and to be bound by the laws of this state.

§ 32-3272 Fees

A. For issuance of a license pursuant to this chapter, including application fees, the board shall establish and charge reasonable fees not to exceed $500.

B. For renewal of a license pursuant to this chapter, the board shall establish and charge reasonable fees not to exceed $500. The board shall not increase fees pursuant to this subsection more than $25 each year.

C. The board by rule may adopt a fee for applications for approval of educational curricula pursuant to section 32-3253, subsection A, paragraph 14.

D. The board shall establish fees to produce monies that approximate the cost of maintaining the board.

E. The board shall waive the application fee for an independent level license if an applicant has paid the fee for an initial or renewal associate level license in this state and within ninety days after payment of the fee the applicant applies for an independent level license.

F. The board shall waive the renewal fee for an associate level license if the licensee has submitted the renewal application and the licensee's application for independent licensure is pending at the time of renewal.

§ 32-3273 License renewal; continuing education

A. Except as provided in section 32-4301, a license issued pursuant to this chapter is renewable every two years by paying the renewal fee prescribed by the board and submitting documentation prescribed by the board by rule of completion of relevant continuing education experience as determined by the board during the previous twenty-four-month period.

B. The board shall send notice in writing of required relevant continuing education experience to each licensee at least ninety days before the renewal date.

C. A licensee must satisfy the continuing education requirements that are prescribed by the board by rule and that are designed to provide the necessary understanding of ethics, cultural competency, current developments, skills, procedures and treatments related to behavioral health and to ensure the continuing competence of licensees. The board shall adopt rules to prescribe the manner of documenting compliance with this subsection.

D. At the request of a licensee who has been issued two or more licenses, the board shall establish the same renewal dates for those licenses. The board may prorate any fees due as necessary to synchronize the dates.

§ 32-3274 Licensure by endorsement

A. The board may issue a license by endorsement to a person in that person's behavioral health discipline if the person is licensed or certified by the regulatory agency of one or more other states or federal jurisdictions at a substantially equivalent or higher practice level as determined by the board, pays the fee prescribed by the board and meets all of the following requirements:

1. Is currently licensed or certified in behavioral health by the regulatory agency of one or more other states or federal jurisdictions and each license or certification is current and in good standing.

2. Has been licensed or certified for at least one year in one or more other states or federal jurisdictions in the discipline and practice level for which an application is submitted. The practice level of the jurisdictions must be substantially equivalent, as determined by the board, to the practice level for which the application is submitted.

3. Meets the basic requirements for licensure prescribed by section 32-3275.

4. Submits to the board all of the following:

(a) A listing of every jurisdiction in the United States in which the person has been licensed or certified in the practice of behavioral health and any disciplinary action taken by any regulatory agency or any instance in which a license has been surrendered in lieu of discipline.

(b) Verification of licensure or certification from every jurisdiction in which the person is licensed or certified for the discipline and practice level for which the person applies.

(c) Any other procedural application requirements adopted by the board in rule.

B. In addition to the requirements of subsection A of this section, a person seeking license by endorsement for the following practice levels must have earned a master's or higher degree in the applicable field of practice granted by a regionally accredited college or university:

1. Licensed clinical social worker.

2. Licensed professional counselor.

3. Licensed marriage and family therapist.

4. Licensed independent addiction counselor.

C. Except for licenses by endorsement issued in the practice levels prescribed in subsection B of this section, a person who is issued a license pursuant to this section shall practice behavioral health only under the direct supervision of a licensee.

D. The board by rule may prescribe a procedure to issue licenses pursuant to this section.

§ 32-3275 Requirements for licensure; withdrawal of application

A. An applicant for licensure must meet all of the following requirements:

1. Submit an application as prescribed by the board.

2. Be at least twenty-one years of age.

3. Pay all applicable fees prescribed by the board.

4. Have the physical and mental capability to safely and competently engage in the practice of behavioral health.

5. Not have committed any act or engaged in any conduct that would constitute grounds for disciplinary action against a licensee pursuant to this chapter.

6. Not have had a professional license or certificate refused, revoked, suspended or restricted by this state or any other regulatory jurisdiction in the United States or any other country for reasons that relate to unprofessional conduct.

7. Not have voluntarily surrendered a professional license or certificate in this state or another regulatory jurisdiction in the United States or any other country while under investigation for conduct that relates to unprofessional conduct.

8. Not have a complaint, allegation or investigation pending before the board or another regulatory jurisdiction in the United States or another country that relates to unprofessional conduct. If an applicant has any such complaint, allegation or investigation pending, the board shall suspend the application process and may not issue or deny a license to the applicant until the complaint, allegation or investigation is resolved.

B. Before the board considers denial of a license based on a deficiency pursuant to subsection A, paragraph 4, 5, 6 or 7 of this section, the applicant shall be given thirty-five days' notice of the time and place of a meeting at which the applicant may provide in person, by counsel or in written form information and evidence related to any deficiency relating to subsection A, paragraph 4, 5, 6 or 7 of this section, including any evidence that the deficiency has been corrected or monitored or that a mitigating circumstance exists. In any notice of denial, the board shall provide notice of the applicant's right to a hearing pursuant to title 41, chapter 6, article 10.

C. If the board finds that an applicant is subject to subsection A, paragraphs 4, 5, 6 or 7 of this section, the board may determine to its satisfaction that the conduct or condition has been corrected, monitored and resolved and may issue a license. If the conduct or condition has not been resolved, the board may determine to its satisfaction that mitigating circumstances exist that prevent its resolution and may issue a license.

D. An applicant for licensure may withdraw the application unless the board has sent to the applicant notification that the board has initiated an investigation concerning professional misconduct. Following that notification, the applicant may request that the board review the applicant's request to withdraw the application. In considering the request the board shall determine whether it is probable that the investigation would result in an adverse action against the applicant.

E. After a final board order of denial has been issued, the board shall report the denial if required by the health care quality improvement act of 1986 (42 United States Code chapter 117). For the purposes of this subsection and except as required by federal law, "final board order" means:

1. For an applicant who seeks a hearing pursuant to title 41, chapter 6, article 10, when a final administrative decision has been made.

2. For an applicant who does not timely file a notice of appeal, after the time for the filing expires pursuant to section 41-1092.03.

§ 32-3276 Notice of address and telephone number changes; penalties

A. A licensee must provide the board with the licensee's current home address and telephone number and office address and telephone number and promptly and in writing inform the board of any change in this information.

B. The board may assess the costs it incurs in locating a licensee and impose a penalty of not to exceed one hundred dollars against a licensee who does not notify the board pursuant to subsection A of this section within thirty days after the change of address or telephone number.

§ 32-3277 Expired licenses; reinstatement

A. A person who does not renew a license is ineligible to practice pursuant to this chapter.

B. The board may reinstate an expired license if the person submits an application for reinstatement within ninety days after the expiration of the license. The application must document to the board's satisfaction that the applicant has met the renewal requirements prescribed by this chapter and include a late renewal penalty prescribed by the board by rule.

§ 32-3278 Inactive license

A. The board by rule may establish procedures for a licensee to delay renewal of the license for good cause and to place the licensee on inactive status. A person on inactive status shall not practice behavioral health or claim to be a licensee.

B. A licensee on inactive status may request reinstatement of the license to active status by submitting a license renewal application.

§ 32-3279 Probationary and temporary licenses

A. If an applicant does not meet the basic requirements for licensure prescribed in section 32-3275, the board may issue a probationary license that is subject to any of the following:

1. A requirement that the licensee's practice be supervised.

2. A restriction on the licensee's practice.

3. A requirement that the licensee begin or continue medical or psychiatric treatment.

4. A requirement that the licensee participate in a specified rehabilitation program.

5. A requirement that the licensee abstain from alcohol and other drugs.

B. If the board offers a probationary license, the board shall notify the applicant in writing of the:

1. Applicant's specific deficiencies.

2. Probationary period.

3. Applicant's right to reject the terms of probation.

4. Applicant's right to a hearing on the board's denial of the application.

C. The board by rule may prescribe a procedure to issue temporary licenses. At a minimum, these rules must include the following provisions:

1. A person issued a temporary license may practice behavioral health only under the direct supervision of a licensee.

2. A temporary license expires on the date specified by the board and not more than one year after the date of issuance.

3. A temporary license may contain restrictions as to time, place and supervision that the board deems appropriate.

4. The board may summarily revoke a temporary license without a hearing.

5. The board's denial of a licensure application terminates a temporary license.

§ 32-3280 Fingerprinting

A. An applicant for licensure under this article other than for a temporary license must submit a full set of fingerprints to the board, at the applicant's own expense, for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

B. The board shall waive the records check required in subsection A of this section for an applicant who provides evidence acceptable to the board that the applicant holds a valid fingerprint clearance card issued by the department of public safety.

Article 4 Regulation

§ 32-3281 Disciplinary action; investigations; hearings; civil penalty; timely complaints; burden of proof

A. The board, on its own motion or on a complaint, may investigate any evidence that appears to show that a licensee is or may be incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable to safely engage in the practice of behavioral health. A motion by the board to initiate an investigation shall be made at an open and properly noticed board meeting and shall include the basis on which the investigation is being initiated and the name of the board member making the motion. The board's vote on the motion to initiate an investigation shall be recorded. As part of its investigation, the board may hold an investigational meeting pursuant to this chapter. Any person may, and a licensee and any entity licensed by the department of health services shall, report to the board any information that would cause a reasonable licensee to believe that another licensee is guilty of unprofessional conduct or is physically or mentally unable to provide behavioral health services competently or safely. Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages. It is an act of unprofessional conduct for any licensee to fail to report as required by this section. The board shall report to the department of health services any entity licensed by the department of health services that fails to report as required by this section. For complaints related to conduct that is inconsistent with professional standards or ethics, scope of practice or standard of care, the board may consult with one or more licensed or retired behavioral health professionals of the same profession as the licensee to review complaints and make recommendations to the board.

B. On determination of reasonable cause, the board shall require, at the licensee's own expense, any combination of mental, physical or psychological examinations, assessments or skills evaluations necessary to determine the licensee's competence or ability to safely engage in the practice of behavioral health and conduct necessary investigations, including investigational interviews between representatives of the board and the licensee, to fully inform the board with respect to any information filed with the board under subsection A of this section. These examinations may include biological fluid testing. The board may require the licensee, at the licensee's expense, to undergo assessment by a rehabilitative, retraining or assessment program approved by the board.

C. If the board finds, based on the information received pursuant to subsection A or B of this section, that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the board may restrict, limit or order a summary suspension of a license pending proceedings for revocation or other action. If the board takes action pursuant to this subsection, it must also serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing before the board or an administrative law judge within sixty days.

D. If after completing an investigation the board finds that the information provided is not of sufficient seriousness to merit disciplinary action against the licensee, the board shall either:

1. Dismiss the complaint if, in the opinion of the board, the complaint is without merit.

2. File a letter of concern and dismiss the complaint. The licensee may file a written response with the board within thirty days after the licensee receives the letter of concern.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

E. A complaint dismissed by the board pursuant to subsection D, paragraph 1 of this section is not a complaint of unprofessional conduct and shall not be disclosed by the board as a complaint on the licensee's complaint history.

F. If after completing its investigation the board believes that the information is or may be true, the board may enter into a consent agreement with the licensee to limit or restrict the licensee's practice or to rehabilitate the licensee, protect the public and ensure the licensee's ability to safely engage in the practice of behavioral health. A consent agreement may also require the licensee to successfully complete a board approved rehabilitative, retraining or assessment program.

G. If the board finds that the information provided pursuant to subsection A of this section is or may be true, the board may request a formal interview with the licensee. If the licensee refuses the invitation for a formal interview or accepts and the results indicate that grounds may exist for revocation or suspension of the licensee's license for more than twelve months, the board shall issue a formal complaint and order that a hearing be held pursuant to title 41, chapter 6, article 10. If after completing a formal interview the board finds that the protection of the public requires emergency action, the board may order a summary suspension of the licensee's license pending formal revocation proceedings or other action authorized by this section.

H. If after completing the formal interview the board finds the information provided is not of sufficient seriousness to merit suspension for more than twelve months or revocation of the license, the board may take the following actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. File a letter of concern and dismiss the complaint. The licensee may file a written response with the board within thirty days after the licensee receives the letter of concern.

3. Issue a decree of censure. A decree of censure is an official action against the licensee's license and may include a requirement for restitution of fees to a client resulting from violations of this chapter or rules adopted pursuant to this chapter.

4. Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the licensee concerned. Probation may include temporary suspension not to exceed twelve months, restriction of the licensee's license to practice behavioral health, a requirement for restitution of fees to a client or education or rehabilitation at the licensee's own expense. If a licensee fails to comply with the terms of probation, the board shall serve the licensee with a written notice that states that the licensee is subject to a formal hearing based on the information considered by the board at the formal interview and any other acts or conduct alleged to be in violation of this chapter or rules adopted by the board pursuant to this chapter, including noncompliance with the terms of probation or a consent agreement.

5. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

I. If the board finds that the information provided in subsection A or G of this section warrants suspension or revocation of a license issued under this chapter, the board shall initiate formal proceedings pursuant to title 41, chapter 6, article 10.

J. In a formal interview pursuant to subsection G of this section or in a hearing pursuant to subsection I of this section, the board in addition to any other action may impose a civil penalty not to exceed one thousand dollars for each violation of this chapter or a rule adopted under this chapter.

K. A letter of concern is a public document.

L. A licensee who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable to safely engage in the practice of behavioral health or to be professionally incompetent is subject to censure, probation as provided in this section, suspension of license or revocation of license or any combination of these, including a stay of action, and for a period of time or permanently and under conditions as the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge all costs incurred in the course of the investigation and formal hearing to the licensee it finds is in violation of this chapter. The board shall deposit, pursuant to sections 35-146 and 35-147, monies collected pursuant to this subsection in the board of behavioral health examiners fund established by section 32-3254.

M. If the board during the course of any investigation determines that a criminal violation may have occurred involving the delivery of behavioral health services, the board shall make the evidence of violations available to the appropriate criminal justice agency for its consideration.

N. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies collected from civil penalties paid pursuant to this chapter in the state general fund.

O. Notice of a complaint and hearing is effective by a true copy of the notice being sent by certified mail to the licensee's last known address of record in the board's files. Notice of the complaint and hearing is complete on the date of its deposit in the mail.

P. In determining the appropriate disciplinary action under this section, the board shall consider all previous nondisciplinary and disciplinary actions against a licensee.

Q. The board may defer action with regard to an impaired licensee who voluntarily signs an agreement, in a form satisfactory to the board, agreeing to practice restrictions and treatment and monitoring programs deemed necessary by the board to protect the public health and safety. A licensee who is impaired and who does not agree to enter into an agreement with the board is subject to other action as provided pursuant to this chapter.

R. Subject to an order duly entered by the board, a person whose license to practice behavioral health has been suspended or restricted pursuant to this chapter, whether voluntarily or by action of the board, may at reasonable intervals apply to the board for reinstatement of the license. The person shall submit the application in writing and in the form prescribed by the board. After conducting an investigation and hearing, the board may grant or deny the application or modify the original finding to reflect any circumstances that have changed sufficiently to warrant modification. The board may require the applicant to pass an examination or complete board imposed continuing education requirements or may impose any other sanctions the board deems appropriate for reentry into the practice of behavioral health.

S. A person whose license is revoked, suspended or not renewed must return the license to the offices of the board within ten days after notice of that action.

T. The board may enforce a civil penalty imposed pursuant to this section in the superior court in Maricopa county.

U. For complaints being brought before the full board, the information released to the public regarding an ongoing investigation must clearly indicate that the investigation is a pending complaint and must include the following statement:

Pending complaints represent unproven allegations. On investigation, many complaints are found to be without merit or not of sufficient seriousness to merit disciplinary action against the licensee and are dismissed.

V. The board shall not act on its own motion or on any complaint received by the board in which an allegation of unprofessional conduct or any other violation of this chapter against a professional who holds an Arizona license occurred more than four years before the complaint is received by the board. The time limitation does not apply to:

1. Malpractice settlements or judgments, allegations of sexual misconduct or an incident or occurrence that involved a felony, diversion of a controlled substance or impairment while practicing by the licensee.

2. The board's consideration of the specific unprofessional conduct related to the licensee's failure to disclose conduct or a violation as required by law.

W. The board shall not open an investigation if identifying information regarding the complainant is not provided.

X. Except for disciplinary matters prescribed by section 32-3251, paragraph 16, subdivision (v), the board has the burden of proof by clear and convincing evidence for disciplinary matters brought pursuant to this chapter.

§ 32-3282 Right to examine and copy evidence; summoning witnesses and documents; taking testimony; right to counsel; confidentiality

A. In connection with information received pursuant to section 32-3281, subsection A, the board or the board's authorized agents or employees at all reasonable times have access to, for the purpose of examination, and the right to copy any psychotherapy notes, documents, reports, records or other physical evidence of any person being investigated, or the reports, records and any other documents maintained by and in possession of any hospital, clinic, physician's office, laboratory, pharmacy or health care institution as defined in section 36-401 or any other public or private agency, if the psychotherapy notes, documents, reports, records or evidence relate to the specific complaint.

B. For the purpose of all investigations and proceedings conducted by the board:

1. The board on its own initiative may issue subpoenas compelling the attendance and testimony of witnesses or demanding the production for examination or copying of documents or any other physical evidence if the evidence relates to the unauthorized practice of behavioral health or to the competence, unprofessional conduct or mental or physical ability of a licensee to safely practice. Within five days after the service of a subpoena on any person requiring the production of any evidence in that person's possession or under that person's control, the person may petition the board to revoke, limit or modify the subpoena. The board shall revoke, limit or modify a subpoena if in its opinion the evidence required does not relate to unlawful practices covered by this chapter or is not relevant to the charge that is the subject matter of the hearing or investigation or the subpoena does not describe with sufficient particularity the physical evidence required to be produced. Any member of the board and any agent designated by the board may administer oaths, examine witnesses and receive evidence.

2. Any person appearing before the board may be represented by counsel.

3. The board shall make available to the licensee who is the subject of the investigation, or the licensee's designated representative, for inspection at the board's office the investigative file at least five business days before a board meeting at which the board considers the complaint. The board may redact any confidential information before releasing the file to the licensee.

4. The superior court, on application by the board or by the person subpoenaed, has jurisdiction to issue an order either:

(a) Requiring the person to appear before the board or the board's authorized agent to produce evidence relating to the matter under investigation.

(b) Revoking, limiting or modifying the subpoena if in the court's opinion the evidence demanded does not relate to unlawful practices covered by this chapter or is not relevant to grounds for disciplinary action that are the subject matter of the hearing or investigation or the subpoena does not describe with sufficient particularity the physical evidence required to be produced. Any failure to obey an order of the court may be punished by the court as contempt.

C. Records, including clinical records, reports, files or other reports or oral statements relating to examinations, findings or treatments of clients, any information from which a client or the client's family might be identified or information received and records kept by the board as a result of the investigation procedure prescribed by this chapter are not available to the public.

D. This section and any other law that makes communications between a licensee and the licensee's client a privileged communication do not apply to investigations or proceedings conducted pursuant to this chapter. The board and and the board's employees, agents and representatives shall keep in confidence the names of any clients whose records are reviewed during the course of investigations and proceedings pursuant to this chapter.

§ 32-3283 Confidential relationship; privileged communications; clients with legal guardians; treatment decisions

A. The confidential relationship between a client and a licensee, including a temporary licensee, is the same as between an attorney and a client. Unless a client waives this privilege in writing or in court testimony, a licensee shall not voluntarily or involuntarily divulge information that is received by reason of the confidential nature of the behavioral health professional-client relationship.

B. A licensee shall divulge to the board information the board requires in connection with any investigation, public hearing or other proceeding.

C. The behavioral health professional-client privilege does not extend to cases in which the behavioral health professional has a duty to:

1. Inform victims and appropriate authorities that a client's condition indicates a clear and imminent danger to the client or others pursuant to this chapter.

2. Report information as required by law.

D. A client's legal guardian may make treatment decisions on behalf of the client, except that the client receiving services is the decision maker for issues:

1. That directly affect the client's physical or emotional safety, such as sexual or other exploitative relationships.

2. That the guardian agrees to specifically reserve to the client.

3. Where the right to seek behavioral health services without parental or guardian consent is established by state or federal law.

§ 32-3284 Cease and desist orders; injunctions

A. The board may issue a cease and desist order or request that an injunction be issued by the superior court to stop a person from engaging in the unauthorized practice of behavioral health or from violating or threatening to violate a statute, rule or order that the board has issued or is empowered to enforce. If the board seeks an injunction to stop the unauthorized practice of behavioral health, it is sufficient to charge that the respondent on a day certain in a named county engaged in the practice of behavioral health without a license and without being exempt from the licensure requirements of this chapter. It is not necessary to show specific damages or injury. The cease and desist order must state the reason for its issuance and give notice of the person's right to request a hearing under applicable procedures prescribed in title 41, chapter 6, article 10.

B. Violation of an injunction shall be punished as for contempt of court.

§ 32-3285 Judicial review

Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-3286 Unlawful practice; unlawful use of title; violations; classification; civil penalty; exception

A. Except as prescribed in section 32-3271, a person who is not licensed pursuant to this chapter shall not engage in the practice of behavioral health.

B. A person who is not licensed pursuant to this chapter shall not use any of the following designations or any other designation that indicates licensure status, including abbreviations, or claim to be licensed pursuant to this chapter:

1. Licensed professional counselor.

2. Licensed associate counselor.

3. Licensed marriage and family therapist.

4. Licensed associate marriage and family therapist.

5. Licensed clinical social worker.

6. Licensed master social worker.

7. Licensed baccalaureate social worker.

8. Licensed independent addiction counselor.

9. Licensed associate addiction counselor.

10. Licensed addiction technician.

C. A person who is not licensed pursuant to this chapter and who practices or attempts to practice or who holds himself out as being trained and authorized to practice behavioral health, including diagnosing or treating any mental ailment, disease or disorder or other mental condition of any person, without being authorized by law to perform the act is engaging in the unauthorized practice of behavioral health, is in violation of this chapter, is guilty of a class 6 felony and is subject to a civil penalty of not more than $500 for each offense.

D. A person who conspires with or aids and abets another to commit any act described in subsection C of this section is guilty of a class 6 felony and is subject to a civil penalty of not more than $500 for each offense.

E. The board shall notify the department of health services if a licensed health care institution employs or contracts with a person who is investigated pursuant to this section.

F. Each day that a violation is committed constitutes a separate offense.

G. All fees received for services described in this section shall be refunded by the person found guilty pursuant to this section.

H. Notwithstanding subsection A of this section and based on circumstances presented to the board, the board may sanction a person's failure to timely renew a license while continuing to engage in the practice of behavioral health as an administrative violation rather than as a violation of this section or grounds for unprofessional conduct and may impose a civil penalty of not more than $500. The board shall deposit, pursuant to sections 35-146 and 35-147, monies collected pursuant to this subsection in the state general fund.

Article 5 Social Work

§ 32-3291 Licensed baccalaureate social worker; licensure; qualifications; supervision

A. A person who wishes to be licensed by the board to engage in the practice of social work as a licensed baccalaureate social worker shall:

1. Furnish documentation as prescribed by the board by rule that the person has earned a baccalaureate degree in social work from a regionally accredited college or university in a program accredited by the council on social work education or a degree from a foreign school based on a program of study that the board determines is substantially equivalent.

2. Pass an examination approved by the board.

B. A licensed baccalaureate social worker shall only engage in clinical practice under direct supervision as prescribed by the board.

§ 32-3292 Licensed master social worker; licensure; qualifications; supervision

A. A person who wishes to be licensed by the board to engage in the practice of social work as a licensed master social worker shall:

1. Furnish documentation satisfactory to the board that the person has earned a master's or higher degree in social work from a regionally accredited college or university in a program accredited by the council on social work education or a degree from a foreign school based on a program of study that the board determines is substantially equivalent.

2. Pass an examination approved by the board.

B. A licensed master social worker shall only engage in clinical practice under direct supervision as prescribed by the board.

§ 32-3293 Licensed clinical social worker; licensure; qualifications

A person who wishes to be licensed by the board to engage in the practice of social work as a licensed clinical social worker shall:

1. Furnish documentation as prescribed by the board by rule that the person has:

(a) Earned a master's or higher degree in social work from a regionally accredited college or university in a program accredited by the council on social work education or a degree from a foreign school based on a program of study that the board determines is substantially equivalent.

(b) Received at least twenty-four months of post-master's degree experience in the practice of clinical social work under supervision that includes at least one thousand six hundred hours of direct client contact that meets the requirements prescribed by the board by rule. For clinical supervision, at least one hundred hours of experience must be as prescribed by the board by rule. For direct client contact hours, not more than four hundred hours may be in psychoeducation.

2. Provide documentation on a board-approved form completed by the person's supervisor attesting that the person both:

(a) Was observed during supervised hours to have demonstrated satisfactory competency in clinical documentation, consultation, collaboration and coordination of care related to clients to whom the person provided direct care.

(b) Has a rating of at least satisfactory in overall performance.

3. Pass an examination approved by the board.

Article 5.1 Social Work Licensure Compact

§ 32-3295 Social work licensure compact

SECTION 1. PURPOSE

A. The purpose of this compact is to facilitate interstate practice of regulated social workers by improving public access to competent social work services. The compact preserves the regulatory authority of states to protect public health and safety through the current system of state licensure.

B. This compact is designed to achieve the following objectives:

1. Increase public access to social work services.

2. Reduce overly burdensome and duplicative requirements associated with holding multiple licenses.

3. Enhance the member states' ability to protect the public's health and safety.

4. Encourage the cooperation of member states in regulating multistate practice.

5. Promote mobility and address workforce shortages by eliminating the necessity for licenses in multiple states by providing for the mutual recognition of other member state licenses.

6. Support military families.

7. Facilitate the exchange of licensure and disciplinary information among member states.

8. Authorize all member states to hold a regulated social worker accountable for abiding by a member state's laws, regulations and applicable professional standards in the member state in which the client is located at the time care is rendered.

9. Allow for the use of telehealth to facilitate increased access to regulated social work services.

SECTION 2. DEFINITIONS

In this compact, unless the context otherwise requires:

1. "Active military member" means any individual with full-time duty status in the active armed forces of the United States, including members of the national guard and reserve.

2. "Adverse action" means any administrative, civil, equitable or criminal action allowed by a state's laws that is imposed by a licensing authority or other authority against a regulated social worker, including actions against an individual's license or multistate authorization to practice, such as revocation, suspension, probation, monitoring of the licensee, limitation on the licensee's practice or any other encumbrance on licensure affecting a regulated social worker's authorization to practice, including issuance of a cease and desist action.

3. "Alternative program" means a nondisciplinary monitoring or practice remediation process approved by a licensing authority to address practitioners with an impairment.

4. "Charter member states" means member states that have enacted legislation to adopt this compact if the legislation predates the effective date of this compact as described in section 14 of this compact.

5. "Compact commission" or "commission" means the government agency whose membership consists of all states that have enacted this compact, that is known as the social work licensure compact commission as described in section 10 of this compact and that operates as an instrumentality of the member states.

6. "Current significant investigative information" means either:

(a) Investigative information that a licensing authority, after a preliminary inquiry that includes notification and an opportunity for the regulated social worker to respond, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction as may be defined by the commission.

(b) Investigative information that indicates that the regulated social worker represents an immediate threat to public health and safety, as defined by the commission, regardless of whether the regulated social worker has been notified and has had an opportunity to respond.

7. "Data system" means a repository of information about licensees, including continuing education, examination, licensure, current significant investigative information, disqualifying events, multistate licenses and adverse action information or other information as required by the commission.

8. "Disqualifying event" means any adverse action or incident that results in an encumbrance that disqualifies or makes the licensee ineligible to either obtain, retain or renew a multistate license.

9. "Domicile" means the jurisdiction in which the licensee resides and intends to remain indefinitely.

10. "Encumbrance" means a revocation or suspension of, or any limitation on, the full and unrestricted practice of social work licensed and regulated by a licensing authority.

11. "Executive committee" means a group of delegates elected or appointed to act on behalf of, and within the powers granted to them by, the compact and commission.

12. "Home state" means the member state that is the licensee's primary domicile.

13. "Impairment":

(a) Means a conditions or conditions that may impair a practitioner's ability to engage in full and unrestricted practice as a regulated social worker without some type of intervention.

(b) May include alcohol and drug dependence, mental health impairment and neurological or physical impairments.

14. "Licensees" means an individual who currently holds a license from a state to practice as a regulated social worker.

15. "Licensing authority" means the board or agency of a member state, or equivalent, that is responsible for licensing and regulating regulated social workers.

16. "Member state" means a state, commonwealth, district or territory of the United States of America that has enacted this compact.

17. "Multistate authorization to practice" means a legally authorized privilege to practice that is equivalent to a license and that is associated with a multistate license permitting the practice of social work in a remote state.

18. "Multistate license" means a license to practice as a regulated social worker issued by a home state licensing authority that authorizes the regulated social worker to practice in all member states under multistate authorization to practice.

19. "Qualifying national exam" means a national licensing examination approved by the commission.

20. "Regulated social worker" means any clinical, master's or bachelor's social worker who is licensed by a member state regardless of the title used by that member state.

21. "Remote state" means a member state other than the licensee's home state.

22. "Rule" or "rule of the commission" means a regulation duly promulgated by the commission, as authorized by the compact, that has the force of law.

23. "Single state license":

(a) Means a social work license issued by any state that authorizes practice only within the issuing state.

(b) Does not include multistate authorization to practice in any member state.

24. "Social work" or "social work services" means the application of social work theory, knowledge, methods, ethics and the professional use of self to restore or enhance social, psychosocial or biopsychosocial functioning of individuals, couples, families, groups, organizations and communities through the care and services provided by a regulated social worker as set forth in the member state's statutes and regulations in the state where the services are being provided.

25. "State" means any state, commonwealth, district or territory of the United States of America that regulates the practice of social work.

26. "Unencumbered license" means a license that authorizes a regulated social worker to engage in the full and unrestricted practice of social work.

SECTION 3. STATE PARTICIPATION IN THE COMPACT

A. To be eligible to participate in the compact, a potential member state must currently meet all of the following criteria:

1. License and regulate the practice of social work at either the clinical, master's or bachelor's category.

2. Require applicants for licensure to graduate from a program that:

(a) Is operated by a college or university recognized by the licensing authority.

(b) Is accredited, or in candidacy by an institution that subsequently becomes accredited, by an accrediting agency recognized by either:

(i) The council for higher education accreditation, or its successor.

(ii) The United States department of education; and

(c) Corresponds to the licensure sought as outlined in section 4 of this compact.

3. Require applicants for clinical licensure to complete a period of supervised practice.

4. Have a mechanism in place for receiving, investigating and adjudicating complaints about licensees.

B. To maintain membership in the compact, a member state shall do all of the following:

1. Require that applicants for a multistate license pass a qualifying national exam for the corresponding category of multistate license sought as outlined in section 4 of this compact.

2. Participate fully in the commission's data system, including using the commission's unique identifier as defined in rules.

3. Notify the commission, in compliance with the terms of the compact and rules, of any adverse action or the availability of current significant investigative information regarding a licensee.

4. Implement procedures for considering the criminal history records of applicants for a multistate license. Such procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant's criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state's criminal records.

5. Comply with the rules of the commission.

6. Require an applicant to obtain or retain a license in the home state and meet the home state's qualifications for licensure or renewal of licensure, as well as all other applicable home state laws.

7. Authorize a licensee holding a multistate license in any member state to practice in accordance with the terms of the compact and rules of the commission.

8. Designate a delegate to participate in the commission meetings.

C. A member state that meets the requirements of subsections A and B of this section shall designate the categories of social work licensure that are eligible for issuance of a multistate license for applicants in such member state. To the extent that any member state does not meet the requirements for participation in the compact at any particular category of social work licensure, such member state may choose, but is not obligated, to issue a multistate license to applicants who otherwise meet the requirements of section 4 of this compact for issuance of a multistate license in such category or categories of licensure.

D. The home state may charge a fee for granting the multistate license.

SECTION 4. SOCIAL WORKER PARTICIPATION IN THE COMPACT

A. To be eligible for a multistate license under the terms and provisions of this compact, an applicant, regardless of category must:

1. Hold or be eligible for an active, unencumbered license in the home state.

2. Pay any applicable fees, including any state fee, for the multistate license.

3. Submit, in connection with an application for a multistate license, fingerprints or other biometric data for the purpose of obtaining criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state's criminal records.

4. Notify the home state of any adverse action, encumbrance or restriction on any professional license taken by any member state or nonmember state within thirty days after the date the action is taken.

5. Meet any continuing competence requirements established by the home state.

6. Abide by the laws, regulations and applicable standards in the member state where the client is located at the time care is rendered.

B. An applicant for a clinical-category multistate license must meet all of the following requirements:

1. Fulfill a competency requirement, which shall be satisfied by either:

(a) Passage of a clinical-category qualifying national exam.

(b) Licensure of the applicant in the applicant's home state at the clinical category, beginning prior to such time as a qualifying national exam was required by the home state and accompanied by a period of continuous social work licensure thereafter, all of which may be further governed by the rules of the commission.

(c) The substantial equivalency of the foregoing competency requirements, which the commission may determine by rule.

2. Attain at least a master's degree in social work from a program that is both:

(a) Operated by a college or university recognized by the licensing authority.

(b) Accredited, or in candidacy that subsequently becomes accredited, by an accrediting agency recognized by either:

(i) The council for higher education accreditation, or its successor.

(ii) The United States department of education.

3. Fulfill a practice requirement, which shall be satisfied by demonstrating completion of either:

(a) A period of postgraduate supervised clinical practice equal to a minimum of three thousand hours.

(b) A minimum of two years of full-time postgraduate supervised clinical practice.

(c) The substantial equivalency of the foregoing practice requirements, which the commission may determine by rule.

C. An applicant for a master's-category multistate license must meet all of the following requirements:

1. Fulfill a competency requirement, which shall be satisfied by either:

(a) Passage of a masters-category qualifying national exam.

(b) Licensure of the applicant in the applicant's home state at the master's category, beginning prior to such time as a qualifying national exam was required by the home state at the master's category and accompanied by a continuous period of social work licensure thereafter, all of which may be further governed by the rules of the commission.

(c) The substantial equivalency of the foregoing competency requirements, which the commission may determine by rule.

2. Attain at least a master's degree in social work from a program that is both:

(a) Operated by a college or university recognized by the licensing authority.

(b) Accredited, or in candidacy that subsequently becomes accredited, by an accrediting agency recognized by either:

(i) The council for higher education accreditation, or its successor.

(ii) The United States department of education.

D. An applicant for a bachelor's-category multistate license must meet all of the following requirements:

1. Fulfill a competency requirement, which shall be satisfied by either:

(a) Passage of a bachelor's-category qualifying national exam.

(b) Licensure of the applicant in the applicant's home state at the bachelor's category, beginning prior to such time as a qualifying national exam was required by the home state and accompanied by a period of continuous social work licensure thereafter, all of which may be further governed by the rules of the commission.

(c) The substantial equivalency of the foregoing competency requirements, which the commission may determine by rule.

2. Attain at least a bachelor's degree in social work from a program that is both:

(a) Operated by a college or university recognized by the licensing authority.

(b) Accredited, or in candidacy that subsequently becomes accredited, by an accrediting agency recognized by either:

(i) The council for higher education accreditation, or its successor.

(ii) The United States department of education.

E. The multistate license for a regulated social worker is subject to the renewal requirements of the home state. The regulated social worker must maintain compliance with the requirements of subsection A of this section to be eligible to renew a multistate license.

F. The regulated social worker's services in a remote state are subject to that member state's regulatory authority. A remote state may, in accordance with due process and that member state's laws, remove a regulated social worker's multistate authorization to practice in the remote state for a specific period of time, impose fines and take any other necessary actions to protect the health and safety of its citizens.

G. If a multistate license is encumbered, the regulated social worker's multistate authorization to practice shall be deactivated in all remote states until the multistate license is no longer encumbered.

H. If a multistate authorization to practice is encumbered in a remote state, the regulated social worker's multistate authorization to practice may be deactivated in that state until the multistate authorization to practice is no longer encumbered.

SECTION 5. ISSUANCE OF A MULTISTATE LICENSE

A. On receipt of an application for multistate license, the home state licensing authority shall determine the applicant's eligibility for a multistate license in accordance with section 4 of this compact.

B. If such applicant is eligible pursuant to section 4 of this compact, the home state licensing authority shall issue a multistate license that authorizes the applicant or regulated social worker to practice in all member states under a multistate authorization to practice.

C. On issuance of a multistate license, the home state licensing authority shall designate whether the regulated social worker holds a multistate license in the bachelor's, master's or clinical category of social work.

D. A multistate license issued by a home state to a resident in that state shall be recognized by all compact member states as authorizing social work practice under a multistate authorization to practice corresponding to each category of licensure regulated in each member state.

SECTION 6. AUTHORITY OF INTERSTATE COMPACT COMMISSION AND MEMBER STATE LICENSING AUTHORITIES

A. This compact and any rule of the commission does not limit, restrict or in any way reduce the ability of a member state to enact and enforce laws, regulations or other rules related to the practice of social work in that state if those laws, regulations or other rules are not inconsistent with the provisions of this compact.

B. This compact does not affect the requirements established by a member state for the issuance of a single state license.

C. This compact and any rule of the commission does not limit, restrict or in any way reduce the ability of a member state to take adverse action against a licensee's single state license to practice social work in that state.

D. This compact and any rule of the commission does not limit, restrict or in any way reduce the ability of a remote state to take adverse action against a licensee's multistate authorization to practice in that state.

E. This compact and any rule of the commission does not limit, restrict or in any way reduce the ability of a licensee's home state to take adverse action against a licensee's multistate license based on information provided by a remote state.

SECTION 7. REISSUANCE OF A MULTISTATE LICENSE BY A NEW HOME STATE

A. A licensee can hold a multistate license issued by the licensee's home state in only one member state at any given time.

B. If a licensee changes the licensee's home state by moving between two member states:

1. The licensee shall immediately apply for the reissuance of the licensee's multistate license in the new home state. The licensee shall pay all applicable fees and notify the prior home state in accordance with the rules of the commission.

2. On receipt of an application to reissue a multistate license, the new home state shall verify that the multistate license is active, unencumbered and eligible for reissuance under the terms of the compact and the rules of the commission. The multistate license issued by the prior home state will be deactivated and all member states notified in accordance with the applicable rules adopted by the commission.

3. Prior to the reissuance of the multistate license, the new home state shall conduct procedures for considering the criminal history records of the licensee. Such procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant's criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state's criminal records.

4. If required for initial licensure, the new home state may require completion of jurisprudence requirements in the new home state.

5. Notwithstanding any other provision of this compact, if a licensee does not meet the requirements set forth in this compact for the reissuance of a multistate license by the new home state, the licensee shall be subject to the new home state requirements for the issuance of a single state license in that state.

C. If a licensee changes the licensee's primary state of residence by moving from a member state to a nonmember state, or from a nonmember state to a member state, the licensee shall be subject to the state requirements for the issuance of a single state license in the new home state.

D. This compact does not interfere with a licensee's ability to hold a single state license in multiple states; however, for the purposes of this compact, a licensee shall have only one home state and only one multistate license.

E. This compact does not interfere with the requirements established by a member state for the issuance of a single state license.

SECTION 8. MILITARY FAMILIES

An active military member or the active military member's spouse shall designate a home state where the individual has a multistate license. The individual may retain the individual's home state designation during the period the active military member is on active duty.

SECTION 9. ADVERSE ACTIONS

A. In addition to the other powers conferred by state law, a remote state shall have the authority, in accordance with existing state due process law, to take adverse action against a regulated social worker's multistate authorization to practice only within that member state and issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses as well as the production of evidence. Subpoenas issued by a licensing authority in a member state for the attendance and testimony of witnesses or the production of evidence from another member state shall be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing licensing authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state in which the witnesses or evidence is located.

B. Only the home state shall have the power to take adverse action against a regulated social worker's multistate license.

C. For the purposes of taking adverse action, the home state shall give the same priority and effect to reported conduct received from a member state as it would if the conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.

D. The home state shall complete any pending investigations of a regulated social worker who changes the regulated social worker's home state during the course of the investigations. The home state shall also have the authority to take appropriate action and shall promptly report the conclusions of the investigations to the administrator of the data system. The administrator of the data system shall promptly notify the new home state of any adverse action.

E. A member state, if otherwise allowed by state law, may recover from the affected regulated social worker the costs of investigations and dispositions of cases resulting from any adverse action taken against that regulated social worker.

F. A member state may take adverse action based on the factual findings of another member state if the member state follows its own procedures for taking the adverse action.

G. The following apply to joint investigations:

1. In addition to the authority granted to a member state by its respective social work practice act or other applicable state law, any member state may participate with other member states in joint investigations of licensees.

2. Member states shall share any investigative, litigation or compliance materials in furtherance of any joint or individual investigation initiated under the compact.

H. If adverse action is taken by the home state against the multistate license of a regulated social worker, the regulated social worker's multistate authorization to practice in all other member states shall be deactivated until all encumbrances have been removed from the multistate license. All home state disciplinary orders that impose adverse action against the license of a regulated social worker shall include a statement that the regulated social worker's multistate authorization to practice is deactivated in all member states until all conditions of the decision, order or agreement are satisfied.

I. If a member state takes adverse action, it shall promptly notify the administrator of the data system. The administrator of the data system shall promptly notify the home state and all other member states of any adverse actions by remote states.

J. This compact does not override a member state's decision that participation in an alternative program may be used in lieu of adverse action.

K. This compact does not authorize a member state to demand the issuance of subpoenas for attendance and testimony of witnesses or the production of evidence from another member state for lawful actions within that member state.

L. This compact does not authorize a member state to impose discipline against a regulated social worker who holds a multistate authorization to practice for lawful actions within another member state.

SECTION 10. ESTABLISHMENT OF SOCIAL WORK LICENSURE

COMPACT COMMISSION

A. The compact member states hereby create and establish a joint government agency whose membership consists of all member states that have enacted the compact known as the social work licensure compact commission. The commission is an instrumentality of the compact states acting jointly and not an instrumentality of any one state. The commission shall come into existence on or after the effective date of the compact as set forth in section 14 of this compact.

B. The membership, voting and meetings of the commission are as follows:

1. Each member state shall have and be limited to one delegate selected by that member state's licensing authority.

2. The delegate shall be either:

(a) A current member of the licensing authority at the time of appointment who is a regulated social worker or public member of the state licensing authority.

(b) An administrator of the licensing authority or the administrator's designee.

3. The commission shall by rule or bylaw establish a term of office for delegates and may by rule or bylaw establish term limits.

4. The commission may recommend the removal or suspension of any delegate from office.

5. A member state's licensing authority shall fill any vacancy of its delegate occurring on the commission within sixty days after the vacancy.

6. Each delegate shall be entitled to one vote on all matters before the commission requiring a vote by commission delegates.

7. A delegate shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for delegates to meet by telecommunication, videoconference or other means of communication.

8. The commission shall meet at least once during each calendar year. Additional meetings may be held as set forth in the bylaws. The commission may meet by telecommunication, video conference or other similar electronic means.

C. The commission shall have the following powers:

1. Establish the fiscal year of the commission.

2. Establish code of conduct and conflict of interest policies.

3. Establish and amend rules and bylaws.

4. Maintain its financial records in accordance with the bylaws.

5. Meet and take such actions as are consistent with this compact, the commission's rules and the bylaws.

6. Initiate and conclude legal proceedings or actions in the name of the commission if the standing of any licensing authority to sue or be sued under applicable law is not affected.

7. Maintain and certify records and information provided to a member state as the authenticated business records of the commission, and designate an agent to do so on the commission's behalf.

8. Purchase and maintain insurance and bonds.

9. Borrow, accept or contract for services of personnel, including employees of a member state.

10. Conduct an annual financial review.

11. Hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of the compact and establish the commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel and other related personnel matters.

12. Assess and collect fees.

13. Accept any appropriate gifts, donations, grants of monies, other sources of revenue, equipment, supplies, materials and services and receive, use and dispose of the same. At all times the commission shall avoid any appearance of impropriety or conflict of interest.

14. Lease, purchase, retain, own, hold, improve or use any property, real, personal, or mixed, or any undivided interest in the property.

15. Sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal, or mixed.

16. Establish a budget and make expenditures.

17. Borrow monies.

18. Appoint committees, including standing committees, composed of members, state regulators, state legislators or their representatives, consumer representatives and such other interested persons as may be designated in this compact and the bylaws.

19. Provide and receive information from, and cooperate with, law enforcement agencies.

20. Establish and elect an executive committee, including a chairperson and a vice chairperson.

21. Determine whether a state's adopted language is materially different from the model compact language such that the state would not qualify for participation in the compact.

22. Perform such other functions as may be necessary or appropriate to achieve the purposes of this compact.

D. The executive committee shall have the power to act on behalf of the commission according to the terms of this compact. The powers, duties and responsibilities of the executive committee include:

1. Overseeing the day-to-day activities of the administration of the compact, including enforcement and compliance with the compact, its rules and bylaws, and other such duties as deemed necessary.

2. Recommending to the commission changes to the rules or bylaws, changes to this compact legislation, fees charged to member states, fees charged to licensees and other fees.

3. Ensuring the compact administration services are appropriately provided, including by contract.

4. Preparing and recommending the budget.

5. Maintaining financial records on behalf of the commission.

6. Monitoring compact compliance of member states and providing compliance reports to the commission.

7. Establishing additional committees as necessary.

8. Exercising the powers and duties of the commission during the interim between commission meetings, except for adopting or amending rules, adopting or amending bylaws, and exercising any other powers and duties expressly reserved to the commission by rule or bylaw.

9. Performing other duties as provided in the rules or bylaws of the commission.

E. The executive committee shall be composed of up to eleven members as follows:

1. The chairperson and vice chairperson of the commission shall be voting members of the executive committee.

2. The commission shall elect five voting members from the current membership of the commission.

3. Up to four ex officio, nonvoting members from four recognized national social work organizations shall be selected by their respective organizations.

F. The commission may remove any member of the executive committee as provided in the commission's bylaws.

G. The executive committee shall meet at least annually. Executive committee meetings shall be open to the public, except that the executive committee may meet in a closed, nonpublic meeting as provided in subsection I, paragraph 2 of this section. The executive committee shall give seven days' notice of its meetings, posted on its website and as determined to provide notice to persons with an interest in the business of the commission. The executive committee may hold a special meeting in accordance with subsection I, paragraph 1 of this section.

H. The commission shall adopt and provide to the member states an annual report.

I. Meetings of the commission are as follows:

1. All meetings shall be open to the public, except that the commission may meet in a closed, nonpublic meeting as provided in paragraph 2 of this subsection. Public notice for all meetings of the full commission shall be given in the same manner as required under the rulemaking provisions in section 12 of this compact, except that the commission may hold a special meeting when it must meet to conduct emergency business by giving forty-eight hours' notice to all commissioners, on the commission's website, and by other means as provided in the commission's rules. The commission's legal counsel shall certify that the commission's need to meet qualifies as an emergency.

2. The commission or the executive committee or other committees of the commission may convene in a closed, nonpublic meeting for the commission or executive committee or other committees of the commission to receive legal advice or to discuss:

(a) Noncompliance of a member state with its obligations under the compact.

(b) The employment, compensation or discipline or other matters, practices or procedures related to specific employees.

(c) Current or threatened discipline of a licensee by the commission or by a member state's licensing authority.

(d) Current, threatened or reasonably anticipated litigation.

(e) Negotiation of contracts for the purchase, lease or sale of goods, services or real estate.

(f) Accusing any person of a crime or formally censuring any person.

(g) Trade secrets or commercial or financial information that is privileged or confidential.

(h) Information of a personal nature if disclosure would constitute a clearly unwarranted invasion of personal privacy.

(i) Investigative records compiled for law enforcement purposes.

(j) Information related to any investigative reports prepared by or on behalf of or for use of the commission or other committee charged with responsibility of investigation or determination of compliance issues pursuant to the compact.

(k) Matters specifically exempted from disclosure by federal or member state law.

(l) Other matters as promulgated by the commission by rule.

3. If a meeting, or portion of a meeting, is closed, the presiding officer shall state that the meeting will be closed and reference each relevant exempting provision, and such reference shall be recorded in the minutes.

4. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release only by a majority vote of the commission or order of a court of competent jurisdiction.

J. Financing of the commission is as follows:

1. The commission shall pay, or provide for the payment of, the reasonable expenses of the commission's establishment, organization, and ongoing activities.

2. The commission may accept any appropriate revenue sources as provided in subsection C, paragraph 13 of this section.

3. The commission may levy on and collect an annual assessment from each member state and impose fees on licensees of member states to whom the commission grants a multistate license to cover the cost of the operations and activities of the commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount for member states shall be allocated based on a formula that the commission promulgates by rule.

4. The commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same, and the commission shall not pledge the credit of any of the member states, except by and with the authority of the member state.

5. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission are subject to the financial review and accounting procedures established under the commission's bylaws. However, all receipts and disbursements of funds handled by the commission are subject to an annual financial review by a certified or licensed public accountant, and the report of the financial review shall be included in and become part of the annual report of the commission.

K. Qualified immunity, defense and indemnification are as follows:

1. The members, officers, executive director, employees and representatives of the commission shall be immune from suit and liability, both personally and in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities. This paragraph does not protect any such person from suit or liability for any damage, loss, injury or liability caused by the intentional or wilful or wanton misconduct of that person. The procurement of insurance of any type by the commission shall not in any way compromise or limit the immunity granted hereunder.

2. The commission shall defend any member, officer, executive director, employee and representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or as determined by the commission that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities. This paragraph does not prohibit that person from retaining the person's own counsel at the person's own expense, and if the actual or alleged act, error, or omission did not result from that person's intentional or wilful or wanton misconduct.

3. The commission shall indemnify and hold harmless any member, officer, executive director, employee and representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities, if the actual or alleged act, error or omission did not result from the intentional or wilful or wanton misconduct of that person.

4. This compact does not limit the liability of any licensee for professional malpractice or misconduct, which shall be governed solely by any other applicable state laws.

5. This compact does not waive or otherwise abrogate a member state's state action immunity or state action affirmative defense with respect to antitrust claims under the Sherman Act, the Clayton Act or any other state or federal antitrust or anticompetitive law or regulation.

6. This compact is not a waiver of sovereign immunity by the member states or by the commission.

SECTION 11. DATA SYSTEM

A. The commission shall provide for the development, maintenance, operation and utilization of a coordinated data system.

B. The commission shall assign each applicant for a multistate license a unique identifier as determined by the rules of the commission.

C. Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the data system on all individuals to whom this compact applies as required by the rules of the commission, including:

1. Identifying information.

2. Licensure data.

3. Adverse actions against a license and information related to the adverse action.

4. Nonconfidential information related to alternative program participation, the beginning and ending dates of such participation, and other information related to such participation that is not made confidential under member state law.

5. Any denial of application for licensure, and the reason or reasons for such denial.

6. The presence of current significant investigative information.

7. Other information that may facilitate the administration of this compact or the protection of the public as determined by the rules of the commission.

D. The records and information provided to a member state pursuant to this compact or through the data system, when certified by the commission or an agent of the commission, shall constitute the authenticated business records of the commission and shall be entitled to any associated hearsay exception in any relevant judicial, quasi-judicial or administrative proceedings in a member state.

E. Current significant investigative information pertaining to a licensee in any member state will only be available to other member states.

F. It is the responsibility of the member states to report any adverse action against a licensee and to monitor the database to determine whether adverse action has been taken against a licensee. Adverse action information pertaining to a licensee in any member state will be available to any other member state.

G. Member states contributing information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.

H. Any information submitted to the data system that is subsequently expunged pursuant to federal law or the laws of the member state contributing the information shall be removed from the data system.

SECTION 12. RULEMAKING

A. The commission shall promulgate reasonable rules in order to effectively and efficiently implement and administer the purposes and provisions of the compact. A rule is invalid and has no force or effect only if a court of competent jurisdiction holds that the rule is invalid because the commission exercised its rulemaking authority in a manner that is beyond the scope and purposes of the compact, or the powers granted hereunder, or based on another applicable standard of review.

B. The rules of the commission shall have the force of law in each member state, provided that if the rules of the commission conflict with the laws of the member state that establish the member state's laws, regulations and applicable standards that govern the practice of social work as held by a court of competent jurisdiction, the rules of the commission shall be ineffective in that state to the extent of the conflict.

C. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this section and the rules adopted thereunder. Rules shall become binding on the day following adoption or the date specified in the rule or amendment, whichever is later.

D. If a majority of the legislatures of the member states rejects a rule or portion of a rule by enactment of a statute or resolution in the same manner used to adopt the compact within four years after the date of adoption of the rule, such rule shall has no further force and effect in any member state.

E. Rules shall be adopted at a regular or special meeting of the commission.

F. Prior to adoption of a proposed rule, the commission shall hold a public hearing and allow persons to provide oral and written comments, data, facts, opinions and arguments.

G. Prior to adoption of a proposed rule by the commission, and at least thirty days before the meeting at which the commission will hold a public hearing on the proposed rule, the commission shall provide a notice of proposed rulemaking:

1. On the website of the commission or other publicly accessible platform.

2. To persons who have requested notice of the commission's notices of proposed rulemaking.

3. In such other way as the commission may by rule specify.

H. The notice of proposed rulemaking shall include:

1. The time, date and location of the public hearing at which the commission will hear public comments on the proposed rule and, if different, the time, date and location of the meeting where the commission will consider and vote on the proposed rule.

2. If the hearing is held via telecommunication, video conference or other electronic means, the commission shall include the mechanism for access to the hearing in the notice of proposed rulemaking.

3. The text of the proposed rule and the reason for the proposed rule.

4. A request for comments on the proposed rule from any interested person.

5. The manner in which interested persons may submit written comments.

I. All hearings shall be recorded. A copy of the recording and all written comments and documents received by the commission in response to the proposed rule shall be available to the public.

J. This section does not require a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

K. The commission, by majority vote of all members, shall take final action on the proposed rule based on the rulemaking record and the full text of the rule. The commission may adopt changes to the proposed rule if the changes do not enlarge the original purpose of the proposed rule. The commission shall provide an explanation of the reasons for substantive changes made to the proposed rule as well as reasons for substantive changes not made that were recommended by commenters. The commission shall determine a reasonable effective date for the rule. Except for an emergency as provided in subsection L of this section, the effective date of the rule shall be not sooner than thirty days after issuing the notice that it adopted or amended the rule.

L. On a determination that an emergency exists, the commission may consider and adopt an emergency rule with forty-eight hours' notice, with opportunity to comment, provided that the usual rulemaking procedures provided in the compact and in this section shall be retroactively applied to the rule as soon as reasonably possible but not later than ninety days after the effective date of the rule. For the purposes of this subsection, an emergency rule is one that must be adopted immediately in order to:

1. Meet an imminent threat to public health, safety or welfare.

2. Prevent a loss of commission or member state monies.

3. Meet a deadline for the promulgation of a rule that is established by federal law or rule.

4. Protect the public health and safety.

M. The commission or an authorized committee of the commission may direct revisions to a previously adopted rule for purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors. Public notice of any revisions shall be posted on the website of the commission. The revision shall be subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the commission prior to the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

N. A member state's rulemaking requirements shall not apply under this compact.

SECTION 13. OVERSIGHT, DISPUTE RESOLUTION AND ENFORCEMENT

A. Oversight is as follows:

1. The executive and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to implement the compact.

2. Except as otherwise provided in this compact, venue is proper and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings. This section does not affect or limit the selection or propriety of venue in any action against a licensee for professional malpractice, misconduct or any such similar matter.

3. The commission shall be entitled to receive service of process in any proceeding regarding the enforcement or interpretation of the compact and shall have standing to intervene in such a proceeding for all purposes. Failure to provide the commission service of process shall render a judgment or order void as to the commission, this compact or promulgated rules.

B. Default, technical assistance and termination are as follows:

1. If the commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall provide written notice to the defaulting state. The notice of default shall describe the default, the proposed means of curing the default and any other action that the commission may take and shall offer training and specific technical assistance regarding the default.

2. The commission shall provide a copy of the notice of default to the other member states.

C. If a state in default fails to cure the default, the defaulting state may be terminated from the compact on an affirmative vote of a majority of the delegates of the member states, and all rights, privileges and benefits conferred on that state by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

D. Termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the commission to the governor, the majority and minority leaders of the defaulting state's legislature, the defaulting state's state licensing authority and each of the member states' licensing authority.

E. A state that has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

F. On the termination of a state's membership from this compact, that state shall immediately provide notice to all licensees within that state of such termination. The terminated state shall continue to recognize all licenses granted pursuant to this compact for at least six months after the date of the notice of termination.

G. The commission shall not bear any costs related to a state that is found to be in default or that has been terminated from the compact, unless agreed on in writing between the commission and the defaulting state.

H. The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district where the commission has its principal offices. The prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees.

I. Dispute resolution is as follows:

1. On request by a member state, the commission shall attempt to resolve disputes related to the compact that arise among member states and between member and nonmember states.

2. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

J. Enforcement is as follows:

1. By majority vote as provided by rule, the commission may initiate legal action against a member state in default in the United States district court for the District of Columbia or the federal district where the commission has its principal offices to enforce compliance with the compact and its promulgated rules. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees. The remedies prescribed in this subsection shall not be the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or the defaulting member state's law.

2. A member state may initiate legal action against the commission in the United States district court for the District of Columbia or the federal district where the commission has its principal offices to enforce compliance with the compact and its promulgated rules. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees.

3. No person other than a member state shall enforce this compact against the commission.

SECTION 14. EFFECTIVE DATE, WITHDRAWAL AND AMENDMENT

A. This compact shall come into effect on the date on which the compact statute is enacted into law in the seventh member state. On or after the effective date of the compact, the commission shall convene and review the enactment of each of the first seven member states, known as the charter member states, to determine if the statute enacted by each such charter member state is materially different than the model compact statute. A charter member state whose enactment is found to be materially different from the model compact statute shall be entitled to the default process set forth in section 13 of this compact. If any member state is later found to be in default, or is terminated or withdraws from the compact, the commission shall remain in existence and the compact shall remain in effect even if the number of member states should be less than seven. Member states enacting the compact after the seven initial charter member states shall be subject to the process set forth in section 10, subsection C, paragraph 21 of this compact to determine if their enactments are materially different from the model compact statute and whether they qualify for participation in the compact.

B. All actions taken for the benefit of the commission or in furtherance of the purposes of the administration of the compact prior to the effective date of the compact or the commission coming into existence shall be considered to be actions of the commission unless specifically repudiated by the commission.

C. Any state that joins the compact after the commission's initial adoption of the rules and bylaws shall be subject to the rules and bylaws as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission has the full force and effect of law on the day the compact becomes law in that state.

D. Any member state may withdraw from this compact by enacting a statute repealing the same. A member state's withdrawal shall not take effect until one hundred eighty days after enactment of the repealing statute. Withdrawal shall not affect the continuing requirement of the withdrawing state's licensing authority to comply with the investigative and adverse action reporting requirements of this compact prior to the effective date of withdrawal. On the enactment of a statute withdrawing from this compact, a state shall immediately provide notice of such withdrawal to all licensees within that state. Notwithstanding any subsequent statutory enactment to the contrary, such withdrawing state shall continue to recognize all licenses granted pursuant to this compact for at least one hundred eighty days after the date of such notice of withdrawal.

E. This compact does not invalidate or prevent any licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with this compact.

F. This compact may be amended by the member states. An amendment to this compact does not become effective and binding on any member state until it is enacted into the laws of all member states.

SECTION 15. CONSTRUCTION AND SEVERABILITY

A. This compact and the commission's rulemaking authority shall be liberally construed so as to effectuate the purposes, implementation and administration of the compact. Provisions of the compact expressly authorizing or requiring the promulgation of rules shall not be construed to limit the commission's rulemaking authority solely for those purposes.

B. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is held by a court of competent jurisdiction to be contrary to the constitution of any member state, of a state seeking participation in the compact or of the United States, or the applicability thereof to any government, agency, person or circumstance is held to be unconstitutional by a court of competent jurisdiction, the validity of the remainder of this compact and the applicability thereof to any other government, agency, person or circumstance shall not be affected thereby.

C. Notwithstanding subsection B of this section, the commission may deny a state's participation in the compact or, in accordance with the requirements of section 13, subsection B of this compact, terminate a member state's participation in the compact, if the commission determines that a constitutional requirement of a member state is a material departure from the compact. Otherwise, if this compact is held to be contrary to the constitution of any member state, the compact shall remain in full force and effect as to the remaining member states and in full force and effect as to the member state affected as to all severable matters.

SECTION 16. CONSISTENT EFFECT AND CONFLICT WITH OTHER STATE LAWS

A. A licensee who provides services in a remote state under a multistate authorization to practice shall adhere to the laws and regulations, including laws, regulations and applicable standards, of the remote state where the client is located at the time care is rendered.

B. This section does not prevent or inhibit the enforcement of any other law of a member state that is not inconsistent with the compact.

C. Any laws, statutes, regulations or other legal requirements in a member state that are in conflict with the compact are superseded to the extent of the conflict.

D. All permissible agreements between the commission and the member states are binding in accordance with their terms.

Article 6 Counseling

§ 32-3301 Licensed professional counselor; licensure; requirements

A. A person who wishes to be licensed by the board to engage in the practice of professional counseling as a licensed professional counselor shall:

1. Meet the education requirements of subsection B of this section and the work experience requirements of subsection F of this section.

2. Pass an examination approved by the board.

B. An applicant for licensure shall furnish documentation as prescribed by the board by rule that the person has received a master's or higher degree with a major emphasis in counseling from a regionally accredited college or university in a program of study that includes at least sixty semester credit hours or ninety quarter credit hours at one of the following:

1. A program accredited by the council for the accreditation of counseling and related educational programs or the national council on rehabilitation education.

2. A program with a curriculum that has been approved by the board pursuant to section 32-3253.

3. A program with a curriculum meeting requirements as prescribed by the board by rule.

C. A program that is not accredited by the council for the accreditation of counseling and related educations programs or the national council on rehabilitation education must require seven hundred hours of supervised clinical hours and twenty-four semester hours or thirty-two quarter hours in courses in the following eight core content areas as prescribed by the board by rule:

1. Professional orientation and ethical practice.

2. Social and cultural diversity.

3. Human growth and development.

4. Career development.

5. Helping relationships.

6. Group work.

7. Assessment.

8. Research and program evaluation.

D. Credit hours offered above those prescribed pursuant to subsection C of this section must be in studies that provide a broad understanding in counseling related subjects as prescribed by the board by rule.

E. The board may accept equivalent coursework in which core content area subject matter is embedded or contained within another course, including another subject matter.

F. An applicant for licensure shall furnish documentation as prescribed by the board by rule that the applicant has received at least twenty-four months in post-master's degree work experience in the practice of professional counseling under supervision that includes at least one thousand six hundred hours of direct client contact and that meets the requirements prescribed by the board by rule. An applicant may use a doctoral-clinical internship to satisfy the requirement for one year of work experience under supervision.

G. In addition to the requirements of subsection F of this section, the applicant must have at least one hundred hours of clinical supervision as prescribed by the board by rule. For the direct client contact hours, not more than four hundred hours may be in psychoeducation.

H. The applicant's supervisor shall attest on a board-approved form that the applicant both:

1. Was observed during supervised hours to have demonstrated satisfactory competency in clinical documentation, consultation, collaboration and coordination of care related to clients to whom the applicant provided direct care.

2. Has a rating of at least satisfactory in overall performance.

I. An applicant who is deficient in hours required pursuant to subsection B of this section may satisfy those requirements by successfully completing post-master's degree coursework.

J. An applicant who completed a degree before July 1, 1989 and whose course of study did not include a practicum may substitute a one-year doctoral-clinical internship or an additional year of documented post-master's degree work experience in order to satisfy the requirements of subsection B of this section.

§ 32-3303 Licensed associate counselor; licensure; requirements; supervision

A. A person who wishes to be licensed by the board to engage in the practice of professional counseling as a licensed associate counselor shall satisfy the requirements of section 32-3301, subsections B, H and I and pass an examination approved by the board.

B. A licensed associate counselor shall only practice under direct supervision as prescribed by the board.

Article 6.1 Licensed Professional Counselor Compact

§ 32-3306 Licensed professional counselors; licensure compact

The counseling compact is enacted into law as follows:

SECTION 1. PURPOSE

A. The purpose of this compact is to facilitate interstate practice of licensed professional counselors with the goal of improving public access to professional counseling services. The practice of professional counseling occurs in the state where the client is located at the time of the counseling services. The compact preserves the regulatory authority of states to protect public health and safety through the current system of state licensure.

B. This compact is designed to achieve the following objectives:

1. Increase public access to professional counseling services by providing for the mutual recognition of other member state licenses.

2. Enhance the states' ability to protect the public's health and safety.

3. Encourage the cooperation of member states in regulating multistate practice for licensed professional counselors.

4. Support spouses of relocating active duty military personnel.

5. Enhance the exchange of licensure, investigative and disciplinary information among member states.

6. Allow for the use of telehealth technology to facilitate increased access to professional counseling services.

7. Support the uniformity of professional counseling licensure requirements throughout the states to promote public safety and public health benefits.

8. Invest all member states with the authority to hold a licensed professional counselor accountable for meeting all state practice laws in the state in which the client is located at the time care is rendered through the mutual recognition of member state licenses.

9. Eliminate the necessity for licenses in multiple states.

10. Provide opportunities for interstate practice by licensed professional counselors who meet uniform licensure requirements.

SECTION 2. DEFINITIONS

As used in this compact, and except as otherwise provided, the following definitions shall apply:

1. "Active duty military" means full-time duty status in the active uniformed service of the United States, including members of the national guard and reserve on active duty orders pursuant to 10 United States Code chapters 1209 and 1211.

2. "Adverse action" means any administrative, civil, equitable or criminal action allowed by a state's laws that is imposed by a licensing board or other authority against a licensed professional counselor, including actions against an individual's license or privilege to practice such as revocation, suspension, probation, monitoring of the licensee, limit on the licensee's practice or any other encumbrance on licensure affecting a licensed professional counselor's authorization to practice, including issuance of a cease and desist action.

3. "Alternative program" means a nondisciplinary monitoring or practice remediation process approved by a professional counseling licensing board to address impaired practitioners.

4. "Continuing competence/education" means a requirement, as a condition of license renewal, to provide evidence of participation in, and completion of, educational and professional activities relevant to a practice or area of work.

5. "Counseling compact commission" or "commission" means the national administrative body whose membership consists of all states that have enacted the compact.

6. "Current significant investigative information" means investigative information that either:

(a) A licensing board, after a preliminary inquiry that includes notification and an opportunity for the licensed professional counselor to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction.

(b) Indicates that the licensed professional counselor represents an immediate threat to public health and safety regardless of whether the licensed professional counselor has been notified and had an opportunity to respond.

7. "Data system" means a repository of information about licensees, including continuing education, examination, licensure, investigative, privilege to practice and adverse action information.

8. "Encumbered license" means a license in which an adverse action restricts the practice of licensed professional counseling by the licensee and the adverse action has been reported to the national practitioners data bank.

9. "Encumbrance" means a revocation or suspension of, or any limit on, the full and unrestricted practice of licensed professional counseling by a licensing board.

10. "Executive committee" means a group of directors elected or appointed to act on behalf of and within the powers granted to them by the commission.

11. "Home state" means the member state that is the licensee's primary state of residence.

12. "Impaired practitioner" means an individual who has a condition that may impair the individual's ability to practice as a licensed professional counselor without some type of intervention and that may include alcohol or drug dependence, a mental health impairment and a neurological or physical impairment.

13. "Investigative information" means information, records and documents received or generated by a professional counseling licensing board pursuant to an investigation.

14. "Jurisprudence requirement" means, if required by a member state, the assessment of an individual's knowledge of the laws and rules governing the practice of professional counseling in a state.

15. "Licensed professional counselor" means a counselor who is licensed by a member state, regardless of the title used by that state, to independently assess, diagnose and treat behavioral health conditions.

16. "Licensee" means an individual who currently holds an authorization from a state to practice as a licensed professional counselor.

17. "Licensing board" means the agency of a state, or the equivalent, that is responsible for licensing and regulating licensed professional counselors.

18. "Member state" means a state that has enacted the compact.

19. "Privilege to practice" means a legal authorization that is equivalent to a license and that authorizes the practice of professional counseling in a remote state.

20. "Professional counseling" means the assessment, diagnosis and treatment of behavioral health conditions by a licensed professional counselor.

21. "Remote state" means a member state other than the home state where a licensee is exercising or seeking to exercise the privilege to practice.

22. "Rule" means a regulation promulgated by the commission that has the force of law.

23. "Single-state license" means a licensed professional counselor license issued by a member state that authorizes practice only within the issuing state and does not include a privilege to practice in any other member state.

24. "State" means any state, commonwealth, district or territory of the United States that regulates the practice of professional counseling.

25. "Telehealth" means the application of telecommunication technology to deliver professional counseling services remotely to assess, diagnose and treat behavioral health conditions.

26. "Unencumbered license" means a license that authorizes a licensed professional counselor to engage in the full and unrestricted practice of professional counseling.

SECTION 3. STATE PARTICIPATION IN THE COMPACT

A. To participate in the compact, a state must currently do all of the following:

1. License and regulate licensed professional counselors.

2. Require licensees to pass a nationally recognized exam approved by the commission.

3. Require licensees to have a sixty-semester-hour or ninety-quarter-hour master's degree in counseling or sixty semester hours or ninety quarter hours of graduate coursework, including in the following topic areas:

(a) Professional counseling orientation and ethical practice.

(b) Social and cultural diversity.

(c) Human growth and development.

(d) Career development.

(e) Counseling and helping relationships.

(f) Group counseling and group work.

(g) Diagnosis and treatment.

(h) Assessment and testing.

(i) Research and program evaluation.

(j) Other areas as determined by the commission.

4. Require licensees to complete a supervised postgraduate professional experience as defined by the commission.

5. Have a mechanism in place for receiving and investigating complaints about licensees.

B. A member state shall do all of the following:

1. Participate fully in the commission's data system, including using the commission's unique identifier as defined in rules.

2. Notify the commission, in compliance with the terms of the compact and rules, of any adverse action or the availability of investigative information regarding a licensee.

3. Implement or use procedures for considering the criminal history records of applicants for an initial privilege to practice. These procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant's criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state's criminal records and shall include the following:

(a) A member state must fully implement a criminal background check requirement within a time frame established by rule by receiving the results of the federal bureau of investigation record search and using the results in making licensure decisions.

(b) Communication between a member state and the commission and among member states regarding the verification of eligibility for licensure through the compact shall not include any information received from the federal bureau of investigation relating to a federal criminal records check performed by a member state under Public Law 92-544.

4. Comply with the rules of the commission.

5. Require an applicant to obtain or retain a license in the home state and meet the home state's qualifications for licensure or licensure renewal, as well as all other applicable state laws.

6. Grant the privilege to practice to a licensee holding a valid unencumbered license in another member state in accordance with the terms of the compact and rules.

7. Provide for the attendance of the state's commissioner to the counseling compact commission meetings.

C. Member states may charge a fee for granting the privilege to practice.

D. Individuals not residing in a member state shall continue to be able to apply for a member state's single-state license as provided under the laws of each member state. The single-state license granted to these individuals shall not be recognized as granting a privilege to practice professional counseling in any other member state.

E. This compact does not affect the requirements established by a member state for issuing a single-state license.

F. A license issued to a licensed professional counselor by a home state to a resident in that state shall be recognized by each member state as authorizing the licensed professional counselor to practice professional counseling under a privilege to practice in each member state.

SECTION 4. PRIVILEGE TO PRACTICE

A. To exercise the privilege to practice under the terms and provisions of the compact, the licensee shall meet all of the following:

1. Hold a license in the home state.

2. Have a valid United States social security number or national practitioner identifier.

3. Be eligible for a privilege to practice in any member state in accordance with subsections D, G and H of this section.

4. Not have had any encumbrance or restriction against any license or privilege to practice within the previous two years.

5. Notify the commission that the licensee is seeking the privilege to practice within a remote state or states.

6. Pay any applicable fees, including any state fee, for the privilege to practice.

7. Meet any continuing competence/education requirements established by the home state.

8. Meet any jurisprudence requirements established by the remote state or states in which the licensee is seeking a privilege to practice.

9. Report to the commission any adverse action, encumbrance or restriction taken on the license by any nonmember state within thirty days after the date the action is taken.

B. The privilege to practice is valid until the expiration date of the home state license. The licensee must comply with the requirements of subsection A of this section to maintain the privilege to practice in the remote state.

C. A licensee providing professional counseling in a remote state under the privilege to practice shall adhere to the laws and regulations of the remote state.

D. A licensee providing professional counseling services in a remote state is subject to that state's regulatory authority. A remote state may, in accordance with due process and that state's laws, remove a licensee's privilege to practice in the remote state for a specific period of time, impose fines and civil penalties or take any other necessary actions to protect the health and safety of its citizens, or any combination of these actions. The licensee may be ineligible for a privilege to practice in any member state until the specific time for removal has passed and all fines and civil penalties are paid.

E. If a home state license is encumbered, the licensee shall lose the privilege to practice in any remote state until both of the following occur:

1. The home state license is no longer encumbered.

2. The licensee has not had any encumbrance or restriction against any license or privilege to practice within the previous two years.

F. Once an encumbered license in the home state is restored to good standing, the licensee must meet the requirements of subsection A of this section to obtain a privilege to practice in any remote state.

G. If a licensee's privilege to practice in any remote state is removed, the individual may lose the privilege to practice in all other remote states until all of the following occur:

1. The specific period of time for which the privilege to practice was removed has ended.

2. All fines and civil penalties have been paid.

3. The licensee has not had any encumbrance or restriction against any license or privilege to practice within the previous two years.

H. Once the requirements of subsection G of this section have been met, the licensee must meet the requirements in subsection A of this section to obtain a privilege to practice in a remote state.

SECTION 5. OBTAINING A NEW HOME STATE LICENSE BASED

ON A PRIVILEGE TO PRACTICE

A. A licensed professional counselor may hold a home state license, which allows for a privilege to practice in other member states, in only one member state at a time.

B. If a licensed professional counselor changes the primary state of residence by moving between two member states, all of the following must occur:

1. The licensed professional counselor shall file an application for obtaining a new home state license based on a privilege to practice, pay all applicable fees and notify the current and new home state in accordance with applicable rules adopted by the commission.

2. On receipt of an application for obtaining a new home state license by virtue of a privilege to practice, the new home state shall verify that the licensed professional counselor meets the pertinent criteria outlined in section 4 of this compact via the data system, without need for primary source verification except for all of the following:

(a) A federal bureau of investigation fingerprint-based criminal background check if not previously performed or updated pursuant to applicable rules adopted by the commission in accordance with Public Law 92-544.

(b) Any other criminal background check as required by the new home state.

(c) Completion of any requisite jurisprudence requirements of the new home state.

3. The former home state shall convert the former home state license into a privilege to practice once the new home state has activated the new home state license in accordance with applicable rules adopted by the commission.

4. Notwithstanding any other provision of this compact, if the licensed professional counselor cannot meet the criteria in section 4 of this compact, the new home state may apply its requirements for issuing a new single-state license.

5. The licensed professional counselor shall pay all applicable fees to the new home state in order to be issued a new home state license.

C. If a licensed professional counselor changes the primary state of residence by moving from a member state to a nonmember state, or from a nonmember state to a member state, the state criteria apply for issuance of a single-state license in the new state.

D. This compact does not interfere with a licensee's ability to hold a single-state license in multiple states. For the purposes of this compact, a licensee shall have only one home state license.

E. This compact does not affect the requirements established by a member state for the issuance of a single-state license.

SECTION 6. ACTIVE DUTY MILITARY PERSONNEL AND THEIR SPOUSES

Active duty military personnel and their spouses shall designate a home state where the individual has a current license in good standing. The individual may retain the home state designation during the period the service member is on active duty. After designating a home state, the individual shall change the individual's home state only by applying for licensure in the new state or through the process outlined in section 5 of this compact.

SECTION 7. COMPACT PRIVILEGE TO PRACTICE TELEHEALTH

A. Member states shall recognize the right of a licensed professional counselor who is licensed by a home state in accordance with section 3 of this compact and under rules promulgated by the commission to practice professional counseling in any member state via telehealth under a privilege to practice as provided in the compact and rules promulgated by the commission.

B. A licensee providing professional counseling services in a remote state under the privilege to practice shall adhere to the laws and regulations of the remote state.

SECTION 8. ADVERSE ACTIONS

A. In addition to the other powers conferred by state law, a remote state shall have the authority, in accordance with existing state due process law, to:

1. Take adverse action against a licensed professional counselor's privilege to practice within that member state.

2. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses as well as the production of evidence. Subpoenas issued by a licensing board in a member state for the attendance and testimony of witnesses or the production of evidence from another member state shall be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedures of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state in which the witnesses or evidence is located.

3. Only the home state shall have the power to take adverse action against a licensed professional counselor's license issued by the home state.

B. For purposes of taking adverse action, the home state shall give the same priority and effect to reported conduct received from a member state as it would if the conduct had occurred within the home state and shall apply its own state laws to determine appropriate action.

C. The home state shall complete any pending investigations of a licensed professional counselor who changes the primary state of residence during the course of the investigations. The home state shall also have the authority to take appropriate action and shall promptly report the conclusions of the investigations to the administrator of the data system. The administrator of the coordinated licensure information system shall promptly notify the new home state of any adverse actions.

D. A member state, if otherwise allowed by state law, may recover from the affected licensed professional counselor the costs of investigations and dispositions of cases resulting from any adverse action taken against that licensed professional counselor.

E. A member state may take adverse action based on the factual findings of the remote state, provided that the member state follows its own procedures for taking the adverse action.

F. With respect to joint investigations:

1. In addition to the authority granted to a member state by its respective professional counseling practice act or other applicable state law, any member state may participate with other member states in joint investigations of licensees.

2. Member states shall share any investigative, litigation or compliance materials in furtherance of any joint or individual investigation initiated under this compact.

G. If adverse action is taken by the home state against the license of a licensed professional counselor, the licensed professional counselor's privilege to practice in all other member states shall be deactivated until all encumbrances have been removed from the home state license. All home state disciplinary orders that impose adverse action against the license of a licensed professional counselor shall include a statement that the licensed professional counselor's privilege to practice is deactivated in all member states during the pendency of the order.

H. If a member state takes adverse action, it shall promptly notify the administrator of the data system. The administrator of the data system shall promptly notify the home state of any adverse actions by remote states.

I. This compact does not override a member state's decision that participation in an alternative program may be used instead of adverse action.

SECTION 9. ESTABLISHMENT OF COUNSELING COMPACT COMMISSION

A. The compact member states hereby create and establish a joint public agency known as the counseling compact commission, to which all of the following apply:

1. The commission is an instrumentality of the compact states.

2. Venue is proper and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

3. This compact shall not be construed to waive sovereign immunity.

B. Membership, voting and meetings of the commission are as follows:

1. Each member state shall have and be limited to one delegate selected by that member state's licensing board.

2. The delegate shall be either:

(a) A current member of the licensing board at the time of appointment who is a licensed professional counselor or public member.

(b) An administrator of the licensing board.

3. Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed.

4. The member state licensing board shall fill any vacancy occurring on the commission within sixty days.

5. Each delegate shall be entitled to one vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the commission.

6. A delegate shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for delegates' participation in meetings by telephone or other means of communication.

7. The commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.

8. The commission shall by rule establish a term of office for delegates and may by rule establish term limits.

C. The commission shall have the following powers and duties:

1. Establish the fiscal year of the commission.

2. Establish bylaws.

3. Maintain its financial records in accordance with the bylaws.

4. Meet and take such actions as are consistent with the provisions of this compact and the bylaws.

5. Promulgate rules that shall be binding to the extent and in the manner provided for in this compact.

6. Bring and prosecute legal proceedings or actions in the name of the commission, provided that the standing of any state licensing board to sue or be sued under applicable law is not affected.

7. Purchase and maintain insurance and bonds.

8. Borrow, accept or contract for services of personnel, including employees of a member state.

9. Hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of this compact and establish the commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel and other related personnel matters.

10. Accept any and all appropriate donations and grants of money, equipment, supplies, materials and services and receive, use and dispose of the same. The commission shall avoid at all times any appearance of impropriety or conflict of interest.

11. Lease, purchase, accept appropriate gifts or donations of, or otherwise own, hold, improve or use, any property, real, personal or mixed. The commission shall avoid at all times any appearance of impropriety.

12. Sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property real, personal or mixed.

13. Establish a budget and make expenditures.

14. Borrow monies.

15. Appoint committees, including standing committees, composed of members, state regulators, state legislators or their representatives and consumer representatives, and such other interested persons as may be designated in this compact and the bylaws.

16. Provide and receive information from and cooperate with law enforcement agencies.

17. Establish and elect an executive committee.

18. Perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of professional counseling licensure and practice.

D. The following apply to the executive committee of the commission:

1. The executive committee shall have the power to act on behalf of the commission according to the terms of this compact.

2. The executive committee shall be composed of up to eleven members, including seven voting members who are elected by the commission from the current membership of the commission and up to four ex officio, nonvoting members from four recognized national professional counselor organizations who are selected by their respective organizations.

3. The commission may remove any member of the executive committee as provided in the bylaws.

4. The executive committee shall meet at least annually.

5. The executive committee shall have all of the following duties and responsibilities:

(a) Recommend to the entire commission changes to the rules or bylaws, changes to this compact legislation, fees paid by compact member states, such as annual dues, and any commission compact fee charged to licensees for the privilege to practice.

(b) Ensure that compact administration services are appropriately provided, contractual or otherwise.

(c) Prepare and recommend the budget.

(d) Maintain financial records on behalf of the commission.

(e) Monitor compact compliance of member states and provide compliance reports to the commission.

(f) Establish additional committees as necessary.

(g) Other duties as provided in rules or bylaws.

E. The following apply to meetings of the commission:

1. All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in section 11 of this compact.

2. The commission, the executive committee and other committees of the commission may convene in a closed, nonpublic meeting if the commission, executive committee or other committee of the commission must discuss any of the following:

(a) Noncompliance of a member state with its obligations under this compact.

(b) The employment, compensation, discipline or other matters, practices or procedures related to specific employees or other matters related to the commission's internal personnel practices and procedures.

(c) Current, threatened or reasonably anticipated litigation.

(d) Negotiation of contracts for the purchase, lease or sale of goods, services or real estate.

(e) Accusing any person of a crime or formally censuring any person.

(f) Disclosure of trade secrets or commercial or financial information that is privileged or confidential.

(g) Disclosure of information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy.

(h) Disclosure of investigative records compiled for law enforcement purposes.

(i) Disclosure of information related to any investigative reports prepared by or on behalf of or for use of the commission or other committee charged with responsibility of investigation or determination of compliance issues pursuant to the compact.

(j) Matters specifically exempted from disclosure by federal or member state statute.

3. If a meeting or portion of a meeting is closed pursuant to this subsection, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision.

4. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in the minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the commission or an order of a court of competent jurisdiction.

F. With respect to financing, the commission:

1. Shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization and ongoing activities.

2. May accept any and all appropriate revenue sources, donations and grants of monies, equipment, supplies, materials and services.

3. May levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated based on a formula to be determined by the commission. The commission shall promulgate a rule that is binding on all member states.

4. Shall not incur obligations of any kind before securing the monies adequate to meet those obligations or pledge the credit of any of the member states, except by and with the authority of the member state.

5. Shall keep accurate accounts of all receipts and disbursements of monies. The receipts and disbursements of the commission are subject to the audit and accounting procedures established under its bylaws. All receipts and disbursements of monies handled by the commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the commission.

G. With respect to qualified immunity, defense and indemnification:

1. The members, officers, executive director, employees and representatives of the commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred, within the scope of commission employment, duties or responsibilities. This paragraph does not protect any such person from suit or liability for any damage, loss, injury or liability caused by that person's intentional or wilful or wanton misconduct.

2. The commission shall defend any member, officer, executive director, employee or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred, within the scope of commission employment, duties or responsibilities. This paragraph does not prohibit that person from retaining his or her own counsel if the actual or alleged act, error or omission did not result from that person's intentional or wilful or wanton misconduct.

3. The commission shall indemnify and hold harmless any member, officer, executive director, employee or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred, within the scope of commission employment, duties or responsibilities if the actual or alleged act, error or omission did not result from that person's intentional or wilful or wanton misconduct.

SECTION 10. DATA SYSTEM

A. The commission shall provide for the development, maintenance, operation and use of a coordinated database and reporting system containing licensure, adverse action and investigative information on all licensed individuals in member states.

B. Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the data system on all individuals to whom this compact applies as required by the rules of the commission, including all of the following:

1. Identifying information.

2. Licensure data.

3. Adverse actions against a license or privilege to practice.

4. Nonconfidential information related to alternative program participation.

5. Any denial of application for licensure and the reasons for such denial.

6. Current significant investigative information.

7. Other information that may facilitate the administration of this compact, as determined by the rules of the commission.

C. Investigative information pertaining to a licensee in any member state shall be available only to other member states.

D. The commission shall promptly notify all member states of any adverse action taken against a licensee or an individual applying for a license. Adverse action information pertaining to a licensee in any member state shall be available to any other member state.

E. Member states contributing information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.

F. Any information submitted to the data system that is subsequently required to be expunged by the laws of the member state contributing the information shall be removed from the data system.

SECTION 11. RULEMAKING

A. The commission shall promulgate reasonable rules in order to effectively and efficiently achieve the purpose of the compact. If the commission exercises its rulemaking authority in a manner that is beyond the scope of the purposes of this compact or the powers granted under the compact, the action taken by the commission is invalid and has no force or effect.

B. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this section and the rules adopted pursuant to this section. Rules and amendments to the rules shall become binding as of the date specified in each rule or amendment.

C. If a majority of the legislatures of the member states rejects a rule by enacting a statute or resolution in the same manner used to adopt the compact within four years after the date of adoption of the rule, the rule has no further force and effect in any member state.

D. Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.

E. Before promulgating and adopting a final rule, the commission shall file a notice of a proposed rulemaking at least thirty days before the meeting at which the rule will be considered and voted on. Notice must be given on both:

1. The commission's website or other publicly accessible platform.

2. The website of each member state's licensing board or other publicly accessible platform or the publication in which each state would otherwise publish proposed rules.

F. The notice of proposed rulemaking shall include all of the following:

1. The proposed time, date and location of the meeting in which the rule will be considered and voted on.

2. The text of the proposed rule or amendment and the reason for the proposed rule.

3. A request for comments on the proposed rule from any interested person.

4. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

G. Before adopting a proposed rule, the commission shall allow persons to submit written data, facts, opinions and arguments, which shall be made available to the public.

H. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendments to a rule if a hearing is requested by one of the following:

1. At least twenty-five persons.

2. A state or federal governmental subdivision or agency.

3. An association having at least twenty-five members.

I. If a hearing is held on the proposed rule or amendment to a rule, the commission shall publish the place, time and date of the scheduled public hearing. If the hearing is held via electronic means, the commission shall publish the mechanism for access to the electronic hearing. The following apply with respect to hearings:

1. All persons wishing to be heard at the hearing shall notify the executive director of the commission or other designated member in writing of their desire to appear and testify at the hearing at least five business days before the scheduled date of the hearing.

2. Hearings shall be conducted in a manner providing each person who wishes to comment with a fair and reasonable opportunity to comment orally or in writing.

3. All hearings shall be recorded and a copy of the recording made available on request.

4. This section does not require a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

J. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

K. If a written notice of intent to attend the public hearing by interested parties is not received, the commission may proceed with promulgation of the proposed rule without a public hearing.

L. The commission shall, by majority vote of all members, take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

M. On determining that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, an opportunity for comment or a hearing, except that the usual rulemaking procedures provided in this compact and in this section shall be retroactively applied to the rule as soon as reasonably possible but not later than ninety days after the effective date of the rule. For the purposes of this subsection, an emergency rule is one that must be adopted immediately in order to do one of the following:

1. Meet an imminent threat to public health, safety or welfare.

2. Prevent a loss of commission or member state monies.

3. Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule.

4. Protect public health and safety.

N. The commission or an authorized committee of the commission may direct revisions to a previously adopted rule or amendment for the purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors. Public notice of any revisions shall be posted on the commission's website. The revision is subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the chairperson of the commission before the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

SECTION 12. OVERSIGHT, DISPUTE RESOLUTION AND ENFORCEMENT

A. Oversight is as follows:

1. The executive, legislative and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated under this compact shall have standing as statutory law.

2. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact that may affect the powers, responsibilities or actions of the commission.

3. The commission is entitled to receive service of process in any such proceeding and shall have standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the commission shall render a judgment or order void as to the commission, this compact or promulgated rules.

B. If the commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall do both of the following:

1. Provide written notice to the defaulting state and other member states of the nature of the default, the proposed means of curing the default and any other action to be taken by the commission.

2. Provide remedial training and specific technical assistance regarding the default.

C. If a state in default fails to cure the default, the defaulting state may be terminated from the compact on an affirmative vote of a majority of the member states, and all rights, privileges and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

D. Termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the commission to the governor, the majority and minority leaders of the defaulting state's legislature and each of the member states.

E. A state that has been terminated is responsible for all assessments, obligations and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

F. The commission shall not bear any costs related to a state that is found to be in default or that has been terminated from the compact, unless agreed on in writing between the commission and the defaulting state.

G. The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district where the commission has its principal offices. The prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees.

H. On request by a member state, the commission shall attempt to resolve disputes related to the compact that arise among member states and between member and nonmember states. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

I. Enforcement provisions of this compact are as follows:

1. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

2. By majority vote, the commission may initiate legal action in the United States district court for the District of Columbia or the federal district where the commission has its principal offices against a member state in default to enforce compliance with the provisions of the compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees.

3. The remedies under this section are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

SECTION 13. DATE OF IMPLEMENTATION OF THE COUNSELING

COMPACT COMMISSION AND ASSOCIATED RULES, WITHDRAWAL

AND AMENDMENT

A. The compact is effective on the date the compact statute is enacted into law in the tenth member state. The provisions of the compact become effective at that time and are limited to the powers granted to the commission relating to assembly and the promulgation of rules. Thereafter, the commission shall meet and exercise rulemaking powers necessary to implement and administer the compact.

B. Any state that joins the compact after the commission's initial adoption of the rules is subject to the rules as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission shall have the full force and effect of law on the day the compact becomes law in that state.

C. Any member state may withdraw from this compact by enacting a statute repealing the compact. The withdrawal of a member state:

1. Does not take effect until six months after enactment of the repealing statute.

2. Does not affect the continuing requirement of the withdrawing state's professional counseling licensing board to comply with the investigative and adverse action reporting requirements of this compact before the effective date of the withdrawal.

D. This compact does not invalidate or prevent any professional counseling licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with the provisions of this compact.

E. This compact may be amended by the member states. An amendment to this compact does not become effective and binding on any member state until it is enacted into the laws of all member states.

SECTION 14. CONSTRUCTION AND SEVERABILITY

This compact shall be liberally construed so as to effectuate the purposes of the compact. The provisions of this compact are severable, and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any member state or of the United States or if the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact is held contrary to the constitution of any member state, the compact shall remain in full force and effect as to the remaining member states and in full force and effect as to the member state affected as to all severable matters.

SECTION 15. BINDING EFFECT OF COMPACT AND OTHER LAWS

A. A licensee providing professional counseling services in a remote state under the privilege to practice shall adhere to the laws and regulations, including scope of practice, of the remote state.

B. This compact does not prevent the enforcement of any other law of a member state that is not inconsistent with the compact.

C. Any laws in a member state that conflict with the compact are superseded to the extent of the conflict.

D. Any lawful actions of the commission, including all rules and bylaws properly promulgated by the commission, are binding on the member states.

E. All permissible agreements between the commission and the member states are binding in accordance with their terms.

F. If any provision of the compact exceeds the constitutional limits imposed on the legislature of any member state, the provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.

Article 7 Marriage and Family Therapy

§ 32-3311 Licensed marriage and family therapist; licensure; qualifications

A. A person who wishes to be licensed by the board to engage in the practice of marriage and family therapy as a licensed marriage and family therapist shall furnish documentation as prescribed by the board by rule that the person has:

1. Earned a master's or doctoral degree in behavioral science, including, but not limited to, marriage and family therapy, psychology, sociology, counseling and social work, granted by a regionally accredited college or university in a program accredited by the commission on accreditation for marriage and family therapy education or a degree based on a program of study that the board determines is substantially equivalent.

2. Completed one thousand six hundred hours of post-master's degree experience in at least twenty-four months in the practice of marriage and family therapy under supervision that meets the requirements prescribed by the board by rule. For the direct client contact hours, not more than four hundred hours may be in psychoeducation. The one thousand six hundred hours must consist of direct client contact and include at least one thousand hours of clinical experience with couples and families and at least one hundred hours of clinical supervision as prescribed by the board by rule.

3. Passed an examination approved by the board.

4. Provided an attestation from the person's supervisor on a board-approved form that the person both:

(a) Was observed during supervised hours to have demonstrated satisfactory competency in clinical documentation, consultation, collaboration and coordination of care related to clients to whom the person provided direct care.

(b) Has a rating of at least satisfactory in overall performance.

B. The curriculum for the master's or doctoral degree in behavioral science accepted by the board pursuant to subsection A, paragraph 1 of this section shall include a specified number of graduate courses as prescribed by the board by rule and shall be consistent with national standards of marriage and family therapy. Part of this course of study may be taken in a post-master's degree program as approved by the board.

C. The one thousand hours of clinical experience required by subsection A, paragraph 2 of this section may include one year in an approved marriage and family doctoral internship program.

§ 32-3313 Licensed associate marriage and family therapist; licensure; requirements; supervision

A. A person who wishes to be licensed by the board to engage in the practice of marriage and family therapy as a licensed associate marriage and family therapist shall satisfy the requirements of section 32-3311, subsection A, paragraphs 1 and 3 and subsection B.

B. A licensed associate marriage and family therapist shall only practice under direct supervision as prescribed by the board.

Article 8 Substance Abuse Counseling

§ 32-3321 Licensed addiction technician; licensed associate addiction counselor; licensed independent addiction counselor; qualifications; supervision

A. A person who wishes to be licensed by the board to engage in the practice of addiction counseling as a licensed addiction technician shall present documentation as prescribed by the board by rule that the person has:

1. Received one of the following:

(a) An associate degree in addiction with an emphasis on counseling that meets the requirements as prescribed by the board by rule from a regionally accredited college or university.

(b) A bachelor's degree in a behavioral science with an emphasis on counseling that meets the requirements as prescribed by the board by rule from a regionally accredited college or university.

2. Passed an examination approved by the board.

B. A licensed addiction technician shall practice only under direct supervision as prescribed by the board.

C. The board may waive the education requirement for an applicant requesting licensure as an addiction technician if the applicant provides services pursuant to contracts or grants with the federal government under the authority of Public Law 93-638 (25 United States Code sections 5301 through 5332) or Public Law 94-437 (25 United States Code sections 1601 through 1683). A person who becomes licensed as an addiction technician pursuant to this subsection shall provide addiction services only to those persons who are eligible for services pursuant to Public Law 93-638 (25 United States Code sections 5301 through 5332) or Public Law 94-437 (25 United States Code sections 1601 through 1683).

D. A person who wishes to be licensed by the board to engage in the practice of addiction counseling as a licensed associate addiction counselor shall present evidence as prescribed by the board by rule that the person has:

1. Received one of the following:

(a) A bachelor's degree in a behavioral science with an emphasis on counseling that meets the requirements as prescribed by the board by rule from a regionally accredited college or university and present documentation as prescribed by the board by rule that the applicant has received at least one thousand six hundred hours of direct client contact work experience in at least twenty-four months in addiction counseling under supervision that meets the requirements prescribed by the board by rule. For the direct client contact hours, not more than four hundred hours may be in psychoeducation.

(b) A master's or higher degree in a behavioral science with an emphasis on counseling as prescribed by the board by rule from a regionally accredited college or university.

2. Passed an examination approved by the board.

3. Provided an attestation from the person's supervisor on a board-approved form that the person both:

(a) Was observed during supervised hours to have demonstrated satisfactory competency in clinical documentation, consultation, collaboration and coordination of care related to clients to whom the person provided direct care.

(b) Has a rating of at least satisfactory in overall performance.

E. A licensed associate addiction counselor shall practice only under direct supervision as prescribed by the board.

F. A person who wishes to be licensed by the board to engage in the practice of addiction counseling as a licensed independent addiction counselor shall:

1. Have received a master's or higher degree in a behavioral science with an emphasis on counseling, in a program that is approved by the board pursuant to section 32-3253 or that meets the requirements as prescribed by the board by rule, from a regionally accredited college or university.

2. Present documentation as prescribed by the board by rule that the applicant has received at least one thousand six hundred hours of work experience in at least twenty-four months in addiction counseling with direct client contact under supervision that meets the requirements as prescribed by the board by rule. For the direct client contact hours, not more than four hundred hours may be in psychoeducation.

3. Pass an examination approved by the board.

4. Provide an attestation from the person's supervisor on a board-approved form that the person both:

(a) Was observed during supervised hours to have demonstrated satisfactory competency in clinical documentation, consultation, collaboration and coordination of care related to clients to whom the person provided direct care.

(b) Has a rating of at least satisfactory in overall performance.

Chapter 34 Occupational Therapy

Article 1 Board of Occupational Therapy Examiners

§ 32-3401 Definitions

In this chapter, unless the context otherwise requires:

1. "Board" means the board of occupational therapy examiners.

2. "Consultation" means the act or procedure of exchanging ideas or information or providing professional advice to another professional or responsible party regarding the provision of occupational therapy services.

3. "Evaluation" means an occupational therapist's assessment of treatment needs within the scope of practice of occupational therapy. Evaluation does not include making a medical diagnosis.

4. "Letter of concern" means a nondisciplinary advisory letter to notify a licensee that, while there is insufficient evidence to support disciplinary action, the licensee should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the board may result in future action against the licensee's license.

5. "Occupational therapist" means a person who is licensed pursuant to this chapter to practice occupational therapy and who is a graduate of an accredited occupational therapy education program, completes the approved fieldwork and passes the examination as required by the board pursuant to section 32-3424.

6. "Occupational therapy" means the use of therapeutic activities or modalities to promote engagement in activities with individuals who are limited by physical or cognitive injury or illness, psychosocial dysfunction, developmental or learning disabilities, sensory processing or modulation deficits or the aging process in order to achieve optimum functional performance, maximize independence, prevent disability and maintain health. Occupational therapy includes evaluation, treatment and consultation based on the client's temporal, spiritual and cultural values and needs.

7. "Occupational therapy assistant" means a person who is licensed pursuant to this chapter, who is a graduate of an accredited occupational therapy assistant education program, who assists in the practice of occupational therapy and who performs delegated procedures commensurate with the person's education and training.

8. "Occupational therapy services" includes the following:

(a) Developing an intervention and training plan that is based on the occupational therapist's evaluation of the client's occupational history and experiences, including the client's daily living activities, development, activity demands, values and needs.

(b) Evaluating and facilitating developmental, perceptual-motor, communication, neuromuscular and sensory processing function, psychosocial skills and systemic functioning, including wound, lymphatic and cardiac functioning.

(c) Enhancing functional achievement, prevocational skills and work capabilities through the use of therapeutic activities and modalities that are based on anatomy, physiology and kinesiology, growth and development, disabilities, technology and analysis of human behavioral and occupational performance.

(d) Evaluating, designing, fabricating and training the individual in the use of selective orthotics, prosthetics, adaptive devices, assistive technology and durable medical equipment as appropriate.

(e) Administering and interpreting standardized and nonstandardized tests that are performed within the practice of occupational therapy, including manual muscle, sensory processing, range of motion, cognition, developmental and psychosocial tests.

(f) Assessing and adapting environments for individuals with disabilities or who are at risk for dysfunction.

9. "Supervision" means the giving of instructions by the supervising occupational therapist or the occupational therapy assistant that are adequate to ensure the safety of clients during the provision of occupational therapy services and that take into consideration at least the following factors:

(a) Skill level.

(b) Competency.

(c) Experience.

(d) Work setting demands.

(e) Client population.

10. "Unprofessional conduct" includes the following:

(a) Habitual intemperance in the use of alcohol.

(b) Habitual use of narcotic or hypnotic drugs.

(c) Gross incompetence, repeated incompetence or incompetence resulting in injury to a client.

(d) Having professional connection with or lending the name of the licensee to an unlicensed occupational therapist.

(e) Practicing or offering to practice occupational therapy beyond the scope of the practice of occupational therapy.

(f) Obtaining or attempting to obtain a license by fraud or misrepresentation or assisting a person to obtain or to attempt to obtain a license by fraud or misrepresentation.

(g) Failing to provide supervision according to this chapter and rules adopted pursuant to this chapter.

(h) Making misleading, deceptive, untrue or fraudulent representations in violation of this chapter.

(i) Having been adjudged mentally incompetent by a court of competent jurisdiction.

(j) Knowingly aiding a person who is not licensed in this state and who directly or indirectly performs activities requiring a license.

(k) Failing to report to the board any act or omission of a licensee or applicant or of any other person who violates this chapter.

(l) Engaging in the performance of substandard care by a licensee due to a deliberate or negligent act or failure to act, regardless of whether actual injury to the person receiving occupational therapy services is established.

(m) Failing to refer a client whose condition is beyond the training or ability of the occupational therapist to another professional qualified to provide such service.

(n) Censure of a licensee or refusal, revocation, suspension or restriction of a license to practice occupational therapy by any other state, territory, district or country, unless the applicant or licensee can demonstrate that the disciplinary action is not related to the ability to safely and skillfully practice occupational therapy or to any act of unprofessional conduct prescribed in this paragraph.

(o) Any conduct or practice that violates recognized standards of ethics of the occupational therapy profession, any conduct or practice that does or might constitute a danger to the health, welfare or safety of the client or the public or any conduct, practice or condition that does or might impair the licensee's ability to safely and skillfully practice occupational therapy.

(p) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate this chapter.

(q) Falsely claiming to have performed a professional service, billing for a service not rendered or charging or collecting an excessive fee for services not performed.

(r) Sexually inappropriate conduct with a client. For the purposes of this subdivision, "sexually inappropriate conduct" includes:

(i) Engaging in or soliciting a sexual relationship, whether consensual or nonconsensual, with a current client or with a former client within three months after termination of occupational therapy services.

(ii) Making sexual advances, requesting sexual favors or engaging in other verbal conduct or inappropriate physical contact of a sexual nature with a person treated by an occupational therapist or occupational therapy assistant.

(iii) Intentionally viewing a completely or partially disrobed client in the course of treatment if the viewing is not related to treatment under current practice standards.

(s) Knowingly making a false or misleading statement to the board on a license application or renewal form required by the board or any other verbal or written communications directed to the board or its staff.

(t) Conviction of a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case conviction by a court of competent jurisdiction is conclusive evidence of the commission and the board may take disciplinary action after the time for appeal has lapsed, when judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order. For the purposes of this subdivision, "conviction" means a plea or verdict of guilty or a conviction following a plea of nolo contendere.

(u) Violating any federal law, state law, rule or regulation directly related to the practice of occupational therapy.

(v) Engaging in false advertising of occupational therapy services.

(w) Engaging in the assault or battery of a client.

(x) Falsifying client documents or reports.

(y) Failing to document or maintain client treatment records or failing to prepare client reports within thirty days of service or treatment.

(z) Failing to renew a license while continuing to practice occupational therapy.

(aa) Signing a blank, undated or unprepared prescription form.

(bb) Entering into a financial relationship other than a normal billing process that leads to embezzlement or violates recognized ethical standards.

(cc) Failing to maintain client confidentiality without written consent of the client or unless otherwise required by law.

(dd) Promoting or providing treatment, intervention or a device or service that is unwarranted for the condition of the client beyond the point of reasonable benefit.

§ 32-3402 Board of occupational therapy examiners; members; qualifications; terms; compensation; civil immunity

A. The board of occupational therapy examiners is established and consists of five members appointed by the governor. Each board member shall be a resident of the state at the time of appointment. The governor shall appoint two persons who are not engaged, directly or indirectly, in the provision of health care services to serve as public members. The other three members shall have at least three years of experience in occupational therapy or teaching in an accredited occupational therapy education program in this state immediately before appointment and shall be licensed under this chapter. The governor may select board members from a list of licensees submitted by the Arizona occupational therapy association, inc. or any other appropriate organization.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. The term of office of board members is three years to begin and end on the third Monday in January. A member shall not serve more than two consecutive terms.

D. The board, at its first regular meeting after the start of each calendar year and as necessary, shall elect a chairperson and other officers from among its members. The board shall meet at least once each quarter in compliance with the open meeting requirements of title 38, chapter 3, article 3.1 and shall keep an official record of these meetings. Other meetings may be convened at the call of the chairperson or the written request of any two board members. A majority of the members of the board shall constitute a quorum.

E. Each member of the board is eligible to receive compensation in the amount of one hundred dollars for each regular or special board meeting the member attends and is eligible for reimbursement for all expenses necessarily and properly incurred in attending board meetings.

F. A board member is immune from civil liability for any actions that are within the scope of the board member's duties if they are taken without malice and in the reasonable belief that they are warranted by law.

§ 32-3403 Executive director; personnel; duties; compensation

A. Subject to title 41, chapter 4, article 4, the board may employ and discharge an executive director and other officers and employees as it deems necessary and designate their duties. Board personnel are eligible to receive compensation as determined pursuant to section 38-611.

B. The executive director shall:

1. Issue and document licenses approved by the board.

2. Keep a record of the status of licenses and licensees.

3. Keep a record of the status of applicants, including those whose applications are denied.

4. Perform tasks and duties assigned by the board.

5. Collect fees and maintain accounting records according to generally accepted accounting principles.

§ 32-3404 Powers and duties; commissioners; committees

A. The board shall:

1. Administer, coordinate and enforce this chapter.

2. Evaluate the qualifications of applicants.

3. Prescribe examination requirements for licensure.

4. Adopt rules necessary to carry out this chapter.

5. Conduct informal meetings, formal interviews and hearings and keep records and minutes necessary to carry out its functions.

6. Prescribe educational programs required for licensure pursuant to this chapter.

B. The board may:

1. Appoint commissioners to assist in the performance of its duties.

2. Report any violations of this chapter or rules adopted pursuant to this chapter to a county attorney, the attorney general, a federal agency or a state or national organization.

3. Establish committees to assist in carrying out its duties for a time prescribed by the board. The board may require a committee appointed pursuant to this paragraph to make regular reports to the board.

C. Commissioners appointed pursuant to subsection B, paragraph 1 of this section shall receive no compensation for their services but shall be reimbursed for actual and necessary expenses that they incur in the performance of their duties.

§ 32-3405 Occupational therapy fund; deposit of receipts by board

(L24, Ch. 222, sec. 43. Eff. until 7/1/28)

A. The occupational therapy fund is established. Pursuant to sections 35-146 and 35-147, civil penalties imposed under section 32-3442, subsection K shall be deposited in the state general fund. The board shall deposit fifteen percent of all other monies collected under this chapter in the state general fund and deposit the remaining eighty-five percent in the occupational therapy fund. Monies in the occupational therapy fund may be used by the board for payment of all necessary board expenses, including compensation and expenses of board members and board staff on claims approved by the board.

B. Monies deposited in the occupational therapy fund are subject to section 35-143.01.

§ 32-3405 (Version 2) Occupational therapy fund; deposit of receipts by board

(L24, Ch. 222, sec. 44. Eff. 7/1/28)

A. The occupational therapy fund is established. Pursuant to sections 35-146 and 35-147, civil penalties imposed under section 32-3442, subsection K shall be deposited in the state general fund. The board shall deposit ten percent of all other monies collected under this chapter in the state general fund and deposit the remaining ninety percent in the occupational therapy fund. Monies in the occupational therapy fund may be used by the board for payment of all necessary board expenses, including compensation and expenses of board members and board staff on claims approved by the board.

B. Monies deposited in the occupational therapy fund are subject to section 35-143.01.

Article 2 Licensure

§ 32-3421 Practicing without a license; prohibition; use of titles

A. Except as provided by section 32-3422, a person shall not do any of the following in this state unless licensed pursuant to this chapter:

1. Practice or assist in the practice of occupational therapy.

2. Claim to be an occupational therapist, an occupational therapy assistant or a provider of occupational therapy services.

3. Render occupational therapy services.

B. A person shall not use any of the following titles, or any letters, abbreviations or insignia of these titles, in connection with that person's name or place of business unless the person is licensed pursuant to this chapter:

1. Occupational therapist.

2. Licensed occupational therapist.

3. Occupational therapist registered.

4. Occupational therapy assistant.

5. Licensed occupational therapy assistant.

6. Certified occupational therapy assistant.

§ 32-3422 Persons and practices not required to be licensed

This chapter does not prevent or restrict the practice, services or activities of:

1. A person engaging in the practice of that person's profession if the service is not practiced as or represented to be occupational therapy.

2. A person licensed in this state from engaging in the profession or occupation for which the person is licensed.

3. A person employed as an occupational therapist or occupational therapy assistant by the United States or any agency of the United States, if that person provides occupational therapy solely under the direction or control of the agency that employs that person.

4. A person pursuing a supervised course of study leading to a degree or certificate in occupational therapy at an accredited or approved educational program pursuant to section 32-3404, if the person is designated by a title that clearly indicates the person's status as a student or trainee.

5. A person fulfilling the supervised fieldwork experience requirements of section 32-3423, if the experience constitutes a part of the fieldwork experience necessary to meet the requirements of section 32-3423.

6. A person performing occupational therapy services in this state for purposes of continuing education, consultation or training, if these services are performed for no more than a cumulative total of sixty days in a calendar year in association with an occupational therapist licensed under this chapter, if either of the following is true:

(a) The person is licensed as an occupational therapist or occupational therapy assistant in good standing in another state.

(b) The person is certified by the national board for certification in occupational therapy, incorporated.

7. A person employed by a health care provider licensed pursuant to another chapter of this title if the person does not claim to be an occupational therapist or occupational therapy assistant and the services or activities constitute a part of the person's job duties.

§ 32-3423 Application for licensure; qualifications

A. An applicant for licensure as an occupational therapist or as an occupational therapy assistant shall:

1. Successfully complete the academic and fieldwork requirements of an educational program subject to board review and standards prescribed by the board. The board shall require:

(a) For an occupational therapist, a minimum of nine hundred twenty-eight hours of supervised fieldwork experience as determined by the supervising institution, organization or sponsor.

(b) For an occupational therapy assistant, a minimum of six hundred eight hours of supervised fieldwork experience as determined by the supervising institution, organization or sponsor.

2. Pass an examination administered pursuant to section 32-3424.

3. Complete the application process and pay all fees required pursuant to this chapter.

B. The board may deny a license to an applicant who:

1. Commits a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case conviction by a court of competent jurisdiction is conclusive evidence of the commission.

2. Engages in any conduct that violates section 32-3401.

C. An applicant who is denied a license may request a hearing pursuant to title 41, chapter 6, article 10.

§ 32-3424 Examination for licensure of occupational therapists and occupational therapy assistants

A. An applicant for licensure shall take a written examination approved and administered by the national board for certification in occupational therapy, incorporated. The examination shall test an applicant's knowledge of the basic and clinical services relating to providing occupational therapy services, techniques and methods.

B. The applicant shall arrange for the examination following successful completion of the academic and fieldwork requirements of section 32-3423 and submit evidence of successful completion of the examination.

§ 32-3425 Licensure by endorsement

A. The board shall grant a license to any person certified before July 1, 1990 as a registered occupational therapist or a certified occupational therapy assistant by the American occupational therapy certification board, incorporated.

B. The board may waive the examination, education or experience requirements and grant a license to an applicant who presents proof of current licensure as an occupational therapist or occupational therapy assistant in another state, the District of Columbia or a territory of the United States that requires standards for licensure considered by the board to be equivalent to the requirements of this chapter for licensure.

C. The board shall issue a license to a person who meets the requirements of this chapter on payment of all prescribed fees.

§ 32-3426 Renewal of license; inactive status; notice of address or name change

A. Except as provided in section 32-4301, a license issued under this chapter is subject to renewal every two years and expires unless renewed. The board may reinstate an expired license if the licensee:

1. Complies with board rules for renewal of licenses.

2. Is not in violation of this chapter or board rules or orders.

3. Pays the fees prescribed pursuant to section 32-3427.

B. A licensee may request and the board may grant inactive status to a licensee who ceases to practice as an occupational therapist or occupational therapy assistant.

C. The board may establish by rule additional requirements for license renewal to require the successful completion of a prescribed number of hours of continuing education as a condition of licensure renewal.

D. A licensee must report to the board in writing a name change and any change in business or home address within thirty days after the change.

§ 32-3427 Fees

A. The board by rule, shall establish and collect fees not to exceed:

1. One hundred dollars for application for a license.

2. Three hundred dollars for an initial license.

3. Three hundred dollars for renewal of a license.

4. Three hundred dollars for an application for reinstatement.

5. Seventy-five dollars for a limited license.

6. Fifty dollars for a duplicate license.

B. The board, by rule, shall establish and collect fees for renewal of an inactive status license.

§ 32-3428 Limited license

A. The board may grant a limited license to a person who has not taken the licensure examination if that person was trained in this country and has completed the academic and fieldwork requirements of this chapter.

B. The board may grant a limited license to a foreign-trained person who has completed the academic and fieldwork requirements of this chapter if that person has not taken the licensure examination but submits proof of acceptance to take the licensure examination.

C. The holder of a limited license may practice occupational therapy only under the supervision of a licensed occupational therapist.

D. A limited license is valid for four months and becomes void if a person fails the examination. The limited license expires if a person passes the examination and is issued a license under section 32-3425, subsection C.

E. The board may reissue a limited license once.

§ 32-3429 Foreign trained applicants

Foreign trained occupational therapists and occupational therapy assistants shall:

1. Satisfy the examination requirements of section 32-3424.

2. Complete the academic and supervised fieldwork requirements that are substantially equal to those prescribed in section 32-3423 before taking the examination.

3. Submit a completed application as prescribed by the board.

4. Pay all applicable fees prescribed pursuant to section 32-3427.

§ 32-3430 Fingerprinting; requirement

A. Beginning January 1, 2022, an applicant for original licensure, license renewal, license reinstatement or a limited license pursuant to this chapter shall possess a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1.

B. This section does not affect the board's authority to otherwise issue, deny, cancel, terminate, suspend or revoke a license or a limited license.

§ 32-3431 Occupational therapy licensure compact

The occupational therapy licensure compact model legislation is adopted and enacted into law as follows:

Section 1

Purpose

The purpose of this compact is to facilitate the interstate practice of occupational therapy with the goal of improving public access to occupational therapy services. The practice of occupational therapy occurs in the state where the patient/client is located at the time of the patient/client encounter. This compact preserves the regulatory authority of states to protect public health and safety through the current system of state licensure. This compact is designed to achieve the following objectives:

1. Increase public access to occupational therapy services by providing for the mutual recognition of other member state licenses.

2. Enhance the states' ability to protect the public's health and safety.

3. Encourage the cooperation of member states in regulating multistate occupational therapy practice.

4. Support spouses of relocating military members.

5. Enhance the exchange of licensure, investigative and disciplinary information between member states.

6. Allow a remote state to hold a provider of services with a compact privilege in that state accountable to that state's practice standards.

7. Facilitate the use of telehealth technology in order to increase access to occupational therapy services.

Section 2

Definitions

As used in this compact, and except as otherwise provided, the following definitions apply:

1. "Active duty military" means full-time duty status in the active uniformed service of the United States, including members of the national guard and reserve on active duty orders pursuant to 10 United States Code chapter 1209 and 10 United States Code chapter 1211.

2. "Adverse action" means any administrative, civil, equitable or criminal action allowed by a state's laws that is imposed by a licensing board or other authority against an occupational therapist or occupational therapy assistant, including actions against an individual's license or compact privilege such as censure, revocation, suspension, probation, monitoring of the licensee or restriction on the licensee's practice.

3. "Alternative program" means a nondisciplinary monitoring process approved by an occupational therapy licensing board.

4. "Compact privilege" means the authorization, which is equivalent to a license, granted by a remote state to allow a licensee from another member state to practice as an occupational therapist or practice as an occupational therapy assistant in the remote state under its laws and rules. The practice of occupational therapy occurs in the member state where the patient/client is located at the time of the patient/client encounter.

5. "Continuing competence/education" means a requirement, as a condition of license renewal, to provide evidence of participation in, and/or completion of, educational and professional activities relevant to practice or area of work.

6. "Current significant investigative information" means investigative information that a licensing board, after an inquiry or investigation that includes notification and an opportunity for the occupational therapist or occupational therapy assistant to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction.

7. "Data system" means a repository of information about licensees, including but not limited to license status, investigative information, compact privileges, and adverse actions.

8. "Encumbered license" means a license in which an adverse action restricts the practice of occupational therapy by the licensee or said adverse action has been reported to the national practitioners data bank.

9. "Executive committee" means a group of directors elected or appointed to act on behalf of, and within the powers granted to them by, the commission.

10. "Home state" means the member state that is the licensee’s primary state of residence.

11. "Impaired practitioner" means individuals whose professional practice is adversely affected by substance abuse, addiction, or other health-related conditions.

12. "Investigative information" means information, records, and/or documents received or generated by an occupational therapy licensing board pursuant to an investigation.

13. "Jurisprudence requirement" means the assessment of an individual's knowledge of the laws and rules governing the practice of occupational therapy in a state.

14. "Licensee" means an individual who currently holds an authorization from the state to practice as an occupational therapist or as an occupational therapy assistant.

15. "Member state" means a state that has enacted the compact.

16. "Occupational therapist" means an individual who is licensed by a state to practice occupational therapy.

17. "Occupational therapy", "occupational therapy practice" and "practice of occupational therapy" mean the care and services provided by an occupational therapist or an occupational therapy assistant as set forth in the member state's statutes and regulations.

18. "Occupational therapy assistant" means an individual who is licensed by a state to assist in the practice of occupational therapy.

19. "Occupational therapy compact commission" or "commission" means the national administrative body whose membership consists of all states that have enacted this compact.

20. "Occupational therapy licensing board" or "licensing board" means the agency of a state that is authorized to license and regulate occupational therapists and occupational therapy assistants.

21. "Primary state of residence" means the state in which an occupational therapist or occupational therapy assistant who is not active duty military declares a primary residence for legal purposes as verified by a driver license, federal income tax return, lease, deed, mortgage or voter registration or other verifying documentation as further defined by commission rules.

22. "Remote state" means a member state, other than the home state, where a licensee is exercising or seeking to exercise the compact privilege.

23. "Rule" means a regulation adopted by the commission that has the force of law.

24. "Single-state license" means an occupational therapist license or occupational therapy assistant license issued by a member state that authorizes practice only within the issuing state and does not include a compact privilege in any other member state.

25. "State" means any state, commonwealth, district or territory of the United States that regulates the practice of occupational therapy.

26. "Telehealth" means the application of telecommunication technology to deliver occupational therapy services for assessment, intervention or consultation, or any combination of these.

Section 3

State Participation in the Compact

A. To participate in the compact, a member state shall:

1. License occupational therapists and occupational therapy assistants.

2. Participate fully in the commission's data system, including using the commission's unique identifier as defined in rules of the commission.

3. Have a mechanism in place for receiving and investigating complaints about licensees.

4. Notify the commission, in compliance with the terms of the compact and rules, of any adverse action or the availability of investigative information regarding a licensee.

5. Implement or use procedures for considering the criminal history records of applicants for an initial compact privilege. These procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant's criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state's criminal records, subject to the following:

(a) A member state, within a time frame established by the commission, shall require a criminal background check for a licensee seeking or applying for a compact privilege whose primary state of residence is that member state, by receiving the results of the federal bureau of investigation criminal record search, and shall use the results in making licensure decisions.

(b) Communication between a member state, the commission and among member states regarding the verification of eligibility for licensure through the compact shall not include any information received from the federal bureau of investigation relating to a federal criminal records check performed by a member state under Public Law 92-544.

6. Comply with the rules of the commission.

7. Utilize only a recognized national examination as a requirement for licensure pursuant to the rules of the commission.

8. Have continuing competence and education requirements as a condition for license renewal.

B. A member state shall grant the compact privilege to a licensee holding a valid unencumbered license in another member state in accordance with the terms of the compact and rules.

C. Member states may charge a fee for granting a compact privilege.

D. A member state shall provide for the state's delegate to attend all occupational therapy compact commission meetings.

E. Individuals not residing in a member state shall continue to be able to apply for a member state's single-state license as provided under the laws of each member state. However, the single-state license granted to these individuals shall not be recognized as granting the compact privilege in any other member state.

F. This compact does not affect the requirements established by a member state for the issuance of a single-state license.

Section 4

Compact Privilege

A. To exercise the compact privilege under the terms and provisions of the compact, the licensee shall meet all of the following requirements:

1. Hold a license in the home state.

2. Have a valid United States social security number or national practitioner identification number.

3. Have no encumbrance on any state license.

4. Be eligible for a compact privilege in any member state in accordance with subsections D, F, G and H of this section.

5. Have paid all fines and completed all requirements resulting from any adverse action against any license or compact privilege, and two years have elapsed from the date of such completion.

6. Notify the commission that the licensee is seeking the compact privilege within a remote state or states.

7. Pay any applicable fees, including any state fee, for the compact privilege.

8. Complete a criminal background check in accordance with section 3, subsection A, paragraph 5 of this compact. The licensee is responsible for the payment of any fee associated with the completion of a criminal background check.

9. Meet any jurisprudence requirements established by the remote state or states in which the licensee is seeking a compact privilege.

10. Report to the commission adverse action taken by any nonmember state within thirty days after the date the adverse action is taken.

B. The compact privilege is valid until the expiration date of the home state license. The licensee must comply with the requirements of subsection A of this section to maintain the compact privilege in the remote state.

C. A licensee providing occupational therapy in a remote state under the compact privilege shall function within the laws and regulations of the remote state.

D. Occupational therapy assistants practicing in a remote state shall be supervised by an occupational therapist licensed or holding a compact privilege in that remote state.

E. A licensee providing occupational therapy in a remote state is subject to that state's regulatory authority. A remote state, in accordance with due process and that state's laws, may remove a licensee's compact privilege in the remote state for a specific period of time, impose fines, or take any other necessary actions to protect the health and safety of its citizens. The licensee may be ineligible for a compact privilege in any state until the specific time for removal has passed and all fines are paid.

F. If a home state license is encumbered, the licensee shall lose the compact privilege in any remote state until both of the following occur:

1. The home state license is no longer encumbered.

2. Two years have elapsed from the date on which the home state license is no longer encumbered in accordance with paragraph 1 of this subsection.

G. Once an encumbered license in the home state is restored to good standing, the licensee must meet the requirements of subsection A of this section to obtain a compact privilege in any remote state.

H. If a licensee's compact privilege in any remote state is removed, the individual may lose the compact privilege in any other remote state until the following occur:

1. The specific period of time for which the compact privilege was removed has ended.

2. All fines have been paid and all conditions have been met.

3. Two years have elapsed from the date of completing requirements for paragraphs 1 and 2 of this subsection.

4. The compact privileges are reinstated by the commission, and the compact data system is updated to reflect reinstatement.

I. If a licensee's compact privilege in any remote state is removed due to an erroneous charge, privileges shall be restored through the compact data system.

J. Once the requirements of subsection H of this section have been met, the licensee must meet the requirements in subsection A of this section to obtain a compact privilege in a remote state.

Section 5

Obtaining a New Home State License

by Virtue of Compact Privilege

A. An occupational therapist or occupational therapy assistant may hold a home state license, which allows for compact privileges in member states, in only one member state at a time.

B. If an occupational therapist or occupational therapy assistant changes primary state of residence by moving between two member states:

1. The occupational therapist or occupational therapy assistant shall file an application for obtaining a new home state license by virtue of a compact privilege, pay all applicable fees and notify the current and new home states in accordance with applicable rules adopted by the commission.

2. On receipt of an application for obtaining a new home state license by virtue of compact privilege, the new home state shall verify that the occupational therapist or occupational therapy assistant meets the pertinent criteria outlined in section 4 of this compact via the data system, without need for primary source verification, except for:

(a) A federal bureau of investigation fingerprint-based criminal background check if not previously performed or updated pursuant to applicable rules adopted by the commission in accordance with Public Law 92-544.

(b) Another criminal background check as required by the new home state.

(c) Submission of any requisite jurisprudence requirements of the new home state.

3. The former home state shall convert the former home state license into a compact privilege once the new home state has activated the new home state license in accordance with applicable rules adopted by the commission.

4. Notwithstanding any other provision of this compact, if the occupational therapist or occupational therapy assistant cannot meet the criteria in section 4 of this compact, the new home state shall apply its requirements for issuing a new single-state license.

5. The occupational therapist or the occupational therapy assistant shall pay all applicable fees to the new home state in order to be issued a new home state license.

C. If an occupational therapist or occupational therapy assistant changes primary state of residence by moving from a member state to a nonmember state, or from a nonmember state to a member state, the state criteria shall apply for issuance of a single-state license in the new state.

D. This compact does not interfere with a licensee's ability to hold a single-state license in multiple states. However, for the purposes of this compact, a licensee shall have only one home state license.

E. This compact does not affect the requirements established by a member state for the issuance of a single-state license.

Section 6

Active Duty Military Personnel or Their Spouses

Active duty military personnel, or their spouses, shall designate a home state where the individual has a current license in good standing. The individual may retain the home state designation during the period the service member is on active duty. Subsequent to designating a home state, the individual shall change the home state only through application for licensure in the new state or through the process described in section 5 of this compact.

Section 7

Adverse Actions

A. A home state shall have exclusive power to impose adverse action against an occupational therapist's or occupational therapy assistant's license issued by the home state.

B. In addition to the other powers conferred by state law, a remote state shall have the authority, in accordance with existing state due process law, to:

1. Take adverse action against an occupational therapist's or occupational therapy assistant's compact privilege within that member state.

2. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses as well as the production of evidence. Subpoenas issued by a licensing board in a member state for the attendance and testimony of witnesses or the production of evidence from another member state shall be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state in which the witnesses or evidence is located.

C. For purposes of taking adverse action, the home state shall give the same priority and effect to reported conduct received from a member state as it would if the conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.

D. The home state shall complete any pending investigations of an occupational therapist or occupational therapy assistant who changes primary state of residence during the course of the investigations. The home state, where the investigations were initiated, shall also have the authority to take any appropriate action and shall promptly report the conclusions of the investigations to the occupational therapy compact commission data system. The occupational therapy compact commission data system administrator shall promptly notify the new home state of any adverse actions.

E. A member state, if otherwise allowed by state law, may recover from the affected occupational therapist or occupational therapy assistant the costs of investigations and disposition of cases resulting from any adverse action taken against that occupational therapist or occupational therapy assistant.

F. A member state may take adverse action based on the factual findings of the remote state, provided that the member state follows its own procedures for taking the adverse action.

G. Joint investigations are as follows:

1. In addition to the authority granted to a member state by its respective state occupational therapy laws and regulations or other applicable state law, any member state may participate with other member states in joint investigations of licensees.

2. Member states shall share any investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under this compact.

H. If an adverse action is taken by the home state against an occupational therapist's or occupational therapy assistant's license, the occupational therapist's or occupational therapy assistant's compact privilege in all other member states shall be deactivated until all encumbrances have been removed from the state license. All home state disciplinary orders that impose adverse action against an occupational therapist's or occupational therapy assistant's license shall include a statement that the occupational therapist's or occupational therapy assistant's compact privilege is deactivated in all member states during the pendency of the order.

I. If a member state takes adverse action, it shall promptly notify the administrator of the data system. The administrator of the data system shall promptly notify the home state of any adverse actions by remote states.

J. This compact does not override a member state's decision that participation in an alternative program may be used in lieu of adverse action.

Section 8

Establishment of the Occupational

Therapy Compact Commission

A. The compact member states hereby create and establish a joint public agency known as the occupational therapy compact commission to which the following apply:

1. The commission is an instrumentality of the compact states.

2. Venue is proper and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

3. Nothing in this compact shall be construed to be a waiver of sovereign immunity.

B. Membership, voting and meetings are as follows:

1. Each member state shall have and be limited to one delegate selected by that member state's licensing board.

2. The delegate shall be either:

(a) A current member of the licensing board who is an occupational therapist, occupational therapy assistant or public member.

(b) An administrator of the licensing board.

3. Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed.

4. The member state board shall fill any vacancy occurring in the commission within ninety days.

5. Each delegate shall be entitled to one vote with regard to the adoption of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the commission. A delegate shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for delegates' participation in meetings by telephone or other means of communication.

6. The commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.

7. The commission shall establish by rule a term of office for delegates.

C. The commission shall have the following powers and duties:

1. Establish a code of ethics for the commission.

2. Establish the fiscal year of the commission.

3. Establish bylaws.

4. Maintain its financial records in accordance with the bylaws.

5. Meet and take such actions as are consistent with the provisions of this compact and the bylaws.

6. Adopt uniform rules to facilitate and coordinate implementation and administration of this compact. The rules shall have the force and effect of law and shall be binding in all member states.

7. Bring and prosecute legal proceedings or actions in the name of the commission, provided that the standing of any state occupational therapy licensing board to sue or be sued under applicable law shall not be affected.

8. Purchase and maintain insurance and bonds.

9. Borrow, accept or contract for services of personnel, including employees of a member state.

10. Hire employees, elect or appoint officers, fix compensation, define duties and grant such individuals appropriate authority to carry out the purposes of the compact, and establish the commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel and other related personnel matters.

11. Accept any and all appropriate donations and grants of monies, equipment, supplies, materials and services, and receive, use and dispose of the same, if at all times the commission avoids any appearance of impropriety or conflict of interest.

12. Lease, purchase, accept appropriate gifts or donations of or otherwise own, hold, improve or use any property, real, personal or mixed, if at all times the commission avoids any appearance of impropriety.

13. Sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal, or mixed.

14. Establish a budget and make expenditures.

15. Borrow monies.

16. Appoint committees, including standing committees composed of members, state regulators, state legislators or their representatives, and consumer representatives, and such other interested persons as may be designated in this compact and the bylaws.

17. Provide and receive information from, and cooperate with, law enforcement agencies.

18. Establish and elect an executive committee.

19. Perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of occupational therapy licensure and practice.

D. The executive committee shall have the power to act on behalf of the commission according to the terms of this compact as follows:

1. The executive committee shall be composed of nine members as follows:

(a) Seven voting members who are elected by the commission from the current membership of the commission.

(b) One ex officio, nonvoting member from a recognized national occupational therapy professional association.

(c) One ex officio, nonvoting member from a recognized national occupational therapy certification organization.

2. The ex officio members will be selected by their respective organizations.

3. The commission may remove any member of the executive committee as provided in bylaws.

4. The executive committee shall meet at least annually.

5. The executive committee shall have the following duties and responsibilities:

(a) Recommend to the entire commission changes to the rules or bylaws, changes to this compact legislation, fees paid by compact member states such as annual dues, and any commission compact fee charged to licensees for the compact privilege.

(b) Ensure compact administration services are appropriately provided, contractual or otherwise.

(c) Prepare and recommend the budget.

(d) Maintain financial records on behalf of the commission.

(e) Monitor compact compliance of member states and provide compliance reports to the commission.

(f) Establish additional committees as necessary.

(g) Perform other duties as provided in rules or bylaws.

E. Meetings of the commission are as follows:

1. All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in section 10 of this compact.

2. The commission or the executive committee or other committees of the commission may convene in a closed, nonpublic meeting if the commission or executive committee or other committees of the commission must discuss:

(a) Noncompliance of a member state with its obligations under the compact.

(b) The employment, compensation or discipline or any other matter, practice or procedure related to specific employees or other matters related to the commission's internal personnel practices and procedures.

(c) Current, threatened or reasonably anticipated litigation.

(d) The negotiation of contracts for the purchase, lease or sale of goods, services or real estate.

(e) The accusation of any person of a crime or formally censuring any person.

(f) The disclosure of trade secrets or commercial or financial information that is privileged or confidential.

(g) The disclosure of information of a personal nature that would constitute a clearly unwarranted invasion of personal privacy.

(h) The disclosure of investigative records compiled for law enforcement purposes.

(i) The disclosure of information related to any investigative reports prepared by or on behalf of or for use of the commission or another committee charged with responsibility of investigation or determination of compliance issues pursuant to this compact.

(j) Matters specifically exempted from disclosure by federal or member state statute.

3. If a meeting, or portion of a meeting, is closed pursuant to this section, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision.

4. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.

F. Financing of the commission is as follows:

1. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization and ongoing activities.

2. The commission may accept any appropriate revenue sources, donations and grants of monies, equipment, supplies, materials and services.

3. The commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved by the commission each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated based on a formula to be determined by the commission, which shall adopt a rule that is binding on all member states.

4. The commission shall not incur obligations of any kind before securing the monies adequate to meet these obligations, and the commission may not pledge the credit of any of the member states, except by and with the authority of the member state.

5. The commission shall keep accurate accounts of all receipts and disbursements, which are subject to the audit and accounting procedures established under its bylaws. All receipts and disbursements of monies handled by the commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the commission.

G. Qualified immunity, defense and indemnification provisions are as follows:

1. The members, officers, executive director, employees and representatives of the commission are immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities. This paragraph does not protect any such person from suit or liability for any damage, loss, injury or liability caused by the intentional or willful or wanton misconduct of that person.

2. The commission shall defend any member, officer, executive director, employee or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities if the actual or alleged act, error or omission did not result from that person's intentional or wilful or wanton misconduct. This paragraph does not prohibit the person against whom the claim is made from retaining the person's own counsel.

3. The commission shall indemnify and hold harmless any member, officer, executive director, employee or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities if the actual or alleged act, error or omission did not result from the intentional or wilful or wanton misconduct of that person.

Section 9

Data System

A. The commission shall provide for the development, maintenance and utilization of a coordinated database and reporting system containing licensure, adverse action and investigative information on all licensed individuals in member states.

B. A member state shall submit a uniform data set to the data system on all individuals to whom this compact applies, using a unique identifier, as required by the rules of the commission, including all of the following:

1. Identifying information.

2. Licensure data.

3. Adverse actions against a license or compact privilege.

4. Nonconfidential information related to alternative program participation.

5. Any denial of an application for licensure and the reason or reasons for such denial.

6. Other information that may facilitate the administration of this compact, as determined by the rules of the commission.

7. Current significant investigative information.

C. Current significant investigative information and other investigative information pertaining to a licensee in any member state will only be available to other member states.

D. The commission shall promptly notify all member states of any adverse action taken against a licensee or an individual applying for a license. Adverse action information pertaining to a licensee in any member state will be available to any other member state.

E. Member states contributing information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.

F. Any information submitted to the data system that is subsequently required to be expunged by the laws of the member state contributing the information shall be removed from the data system.

Section 10

Rulemaking

A. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this section and the rules adopted under this section. Rules and amendments become binding as of the date specified in each rule or amendment.

B. The commission shall adopt reasonable rules in order to effectively and efficiently achieve the purposes of this compact. Notwithstanding the foregoing, if the commission exercises its rulemaking authority in a manner that is beyond the scope of the purposes of this compact or the powers granted under this compact, such an action by the commission is invalid and has no force and effect.

C. If a majority of the legislatures of the member states rejects a rule by enactment of a statute or resolution in the same manner used to adopt the compact within four years after the date of adoption of the rule, the rule has no further force and effect in any member state.

D. Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.

E. Before the adoption of a final rule or rules by the commission, and at least thirty days before the meeting at which the rule will be considered and voted on, the commission shall file a notice of proposed rulemaking on both:

1. The website of the commission or other publicly accessible platform.

2. The website of each member state's occupational therapy licensing board or other publicly accessible platform or the publication in which each state would otherwise publish proposed rules.

F. The notice of proposed rulemaking shall include all of the following:

1. The proposed time, date and location of the meeting in which the rule will be considered and voted on.

2. The text of the proposed rule or amendment and the reason for the proposed rule.

3. A request for comments on the proposed rule from any interested person.

4. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

G. Before the adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions and arguments, which shall be made available to the public.

H. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by any of the following:

1. At least twenty-five persons.

2. A state or federal governmental subdivision or agency.

3. An association or organization having at least twenty-five members.

I. If a hearing is held on the proposed rule or amendment, the commission shall publish the place, time and date of the scheduled public hearing. If the hearing is held via electronic means, the commission shall publish the mechanism for access to the electronic hearing. Additionally:

1. All persons wishing to be heard at the hearing shall notify the executive director of the commission or other designated member in writing of their desire to appear and testify at the hearing at least five business days before the scheduled date of the hearing.

2. Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing.

3. All hearings will be recorded. A copy of the recording will be made available on request.

4. This section does not require a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

J. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

K. If no written notice of intent to attend the public hearing by interested parties is received, the commission may proceed with the adoption of the proposed rule without a public hearing.

L. The commission, by majority vote of all members, shall take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

M. On determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, an opportunity for comment or a hearing if the usual rulemaking procedures provided in the compact and in this section are retroactively applied to the rule as soon as reasonably possible, but not later than ninety days after the effective date of the rule. For the purposes of this subsection, an emergency rule is one that must be adopted immediately in order to do any of the following:

1. Meet an imminent threat to public health, safety or welfare.

2. Prevent a loss of commission or member state funds.

3. Meet a deadline for the adoption of an administrative rule that is established by federal law or rule.

4. Protect public health and safety.

N. The commission or an authorized committee of the commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors. Public notice of any revisions shall be posted on the website of the commission. The revision is subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the chairperson of the commission before the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

Section 11

Oversight, Dispute Resolution and Enforcement

A. Oversight of the commission is as follows:

1. The executive, legislative and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules adopted under this compact have standing as statutory law.

2. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact that may affect the powers, responsibilities or actions of the commission.

3. The commission is entitled to receive service of process in any such proceeding and shall have standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the commission shall render a judgment or order void as to the commission, this compact or rules adopted under this compact.

B. Default, technical assistance and termination provisions are as follows:

1. If the commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or rules adopted under this compact, the commission shall do both of the following:

(a) Provide written notice to the defaulting state and other member states of the nature of the default, the proposed means of curing the default or any other action to be taken by the commission.

(b) Provide remedial training and specific technical assistance regarding the default.

2. If a state in default fails to cure the default, the defaulting state may be terminated from the compact on an affirmative vote of a majority of the member states, and all rights, privileges and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

3. Termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the commission to the governor, the majority and minority leaders of the defaulting state's legislature and each of the member states.

4. A state that has been terminated is responsible for all assessments, obligations and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

5. The commission may not bear any costs related to a state that is found to be in default or that has been terminated from the compact, unless agreed on in writing between the commission and the defaulting state.

6. The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district where the commission has its principal offices. The prevailing member shall be awarded all costs of such litigation, including reasonable attorney fees.

C. Dispute resolution provisions are as follows:

1. On request by a member state, the commission shall attempt to resolve disputes related to the compact that arise among member states and between member and nonmember states.

2. The commission shall adopt a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

D. Enforcement provisions are as follows:

1. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

2. By majority vote, the commission may initiate legal action in the United States district court for the District of Columbia or the federal district where the commission has its principal offices against a member state in default to enforce compliance with the provisions of the compact and its adopted rules and bylaws. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing member shall be awarded all costs of such litigation, including reasonable attorney fees.

3. The remedies in this compact are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

Section 12

Date of Implementation of the Interstate Commission

for Occupational Therapy Practice and Associated Rules,

Withdrawal and Amendment

A. This compact is effective on the date on which the compact statute is enacted into law in the tenth member state. The provisions, which become effective at that time, shall be limited to the powers granted to the commission relating to assembly and the adoption of rules. Thereafter, the commission shall meet and exercise rulemaking powers necessary to implement and administer this compact.

B. Any state that joins the compact subsequent to the commission's initial adoption of the rules is subject to the rules as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission shall have the full force and effect of law on the day the compact becomes law in that state.

C. Any member state may withdraw from this compact by enacting a statute repealing the same. The following apply with respect to withdrawal:

1. A member state's withdrawal shall not take effect until six months after enactment of the repealing statute.

2. Withdrawal shall not affect the continuing requirement of the withdrawing state's occupational therapy licensing board to comply with the investigative and adverse action reporting requirements of this compact before the effective date of withdrawal.

D. This compact does not invalidate or prevent any occupational therapy licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with the provisions of this compact.

E. This compact may be amended by the member states. An amendment to this compact does not become effective and binding on any member state until it is enacted into the laws of all member states.

Section 13

Construction and Severability

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any member state or of the United States or if the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact is held contrary to the constitution of any member state, the compact shall remain in full force and effect as to the remaining member states and in full force and effect as to the member state affected as to all severable matters.

Section 14

Binding Effect of Compact and Other Laws

A. A licensee providing occupational therapy in a remote state under the compact privilege shall function within the laws and regulations of the remote state.

B. This compact does not prevent the enforcement of any other law of a member state that is not inconsistent with the compact.

C. Any laws in a member state that are in conflict with the compact are superseded to the extent of the conflict.

D. Any lawful actions of the commission, including all rules and bylaws adopted by the commission, are binding on the member states.

E. All agreements between the commission and the member states are binding in accordance with their terms.

F. If any provision of the compact exceeds the constitutional limits imposed on the legislature of any member state, the provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.

Article 3 Regulation of Occupational Therapists

§ 32-3441 Proper use of title or designation of occupational therapists; license display; supervision; responsibilities

A. A person who is licensed pursuant to this chapter to practice as an occupational therapist and who is in good standing may use the title of licensed occupational therapist and the abbreviation "O.T.", "O.T./L.", "O.T.R." or "O.T.R./L.". A person who is licensed pursuant to this chapter to practice as a licensed occupational therapy assistant and who is in good standing may use the title of licensed occupational therapy assistant and the abbreviation "O.T.A.", "O.T.A./L.", "C.O.T.A." or "C.O.T.A./L.".

B. Each occupational therapist and occupational therapy assistant shall display the person's current license in each facility in which the person practices occupational therapy. If a facility is not available for the display of the license, the occupational therapist or the occupational therapy assistant must carry a board-issued wallet-sized license card during working hours.

C. The board may adopt rules reasonably related to sound client care governing an occupational therapist's supervision of licensed occupational therapy assistants or unlicensed personnel or students working with the occupational therapist.

D. An occupational therapist and an occupational therapy assistant are professionally and legally responsible for supervising client care given by unlicensed personnel or students. If an occupational therapist or occupational therapy assistant fails to adequately supervise client care given by unlicensed personnel or students, the board may take disciplinary action against the occupational therapist or occupational therapy assistant.

E. In all settings in which occupational therapy services are provided, an occupational therapist, during evaluation, intervention and outcome and discharge planning:

1. Must sign all clinical documentation performed by students.

2. Must be the primary clinical supervisor for level II occupational therapist and occupational therapy assistant students, including level II doctoral students. The occupational therapist's supervision of the student must initially be direct and subsequently may be decreased to less direct supervision as appropriate to the setting, the client's needs and the student's ability.

F. In all settings in which occupational therapy services are provided, an occupational therapy assistant, during evaluation, intervention and outcome and discharge planning:

1. Must sign all clinical documentation performed by students.

2. Must be under the direction of an occupational therapist.

3. May be the primary clinical educator for level I occupational therapist and occupational therapy assistant students and level II occupational therapy assistant students. The occupational therapy assistant's supervision of the student must initially be direct and subsequently may be decreased to less direct supervision as appropriate to the setting, the client's needs and the student's ability.

§ 32-3442 Disciplinary action; informal meetings; formal interviews; hearings; penalties; reinstatement of license

A. The board may:

1. Receive written complaints filed against licensees and conduct investigations.

2. Conduct an investigation at any time on its own initiative without receipt of a written complaint if the board has reason to believe:

(a) That there may be a violation of this chapter, a rule adopted pursuant to this chapter or a written board order.

(b) That a licensee is or may be guilty of unprofessional conduct or is or may be acting outside the scope of practice.

(c) That a licensee is or may be incompetent.

B. Any occupational therapist, occupational therapy assistant or health care institution as defined in section 36-401 shall report to the board any information the occupational therapist, occupational therapy assistant, health care institution or individual may have that appears to show that an occupational therapist or an occupational therapy assistant is or may be guilty of unprofessional conduct or is or may be incompetent.

C. A person who provides information to the board in good faith pursuant to subsection A or B of this section is not subject to an action in civil damages as a result of providing the information.

D. Within sixty days of receipt of a written complaint pursuant to subsection A of this section or information pursuant to subsection B of this section, the board shall notify the licensee about whom information has been received as to the content of the complaint or information.

E. The board may request an informal meeting or a formal interview with the licensee or any other person to further its investigation or to resolve a complaint.

F. If a licensee refuses the board's request for an informal meeting or a formal interview, or in place of holding an informal meeting or a formal interview, the board shall hold a hearing pursuant to title 41, chapter 6, article 10.

G. If the results of an informal meeting or a formal interview indicate that suspension or revocation of the licensee's license or a civil penalty might be appropriate, the board shall notify the licensee of the time and place for a hearing pursuant to title 41, chapter 6, article 10.

H. If at the informal meeting or formal interview the board finds a violation of this chapter, but the violation is not of sufficient seriousness to merit a civil penalty or suspension or revocation of a license, it may take one or more of the following actions:

1. Issue a decree of censure.

2. Establish length and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the licensee. Probation may include:

(a) Submission of the licensee to examinations to determine the mental or physical condition or professional competence of the licensee at the licensee's expense.

(b) Occupational therapy training or education that the board believes to be necessary to correct deficiencies.

(c) Review or supervision of the licensee's practice that the board finds necessary to identify and correct deficiencies in the practice, including a requirement that the licensee regularly report to the board on matters related to the licensee's probationary requirements.

(d) Restrictions on the nature and scope of practice to ensure that the licensee does not practice beyond the limits of the licensee's capabilities.

3. Issue a letter of concern.

4. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of practice standards for licensees including current developments, skills, procedures or treatment interventions.

5. Dismiss the complaint.

I. In addition to the terms of probation described in subsection H, paragraph 2 of this section, probation may also include temporary suspension or restriction of the licensee's license to practice. A licensee's failure to comply with probation or any other board order is cause for a hearing pursuant to title 41, chapter 6, article 10.

J. At the licensee's expense the board may require any combination of a physical, mental or occupational therapy competence examination as part of a board investigation, including, if necessary, the taking of depositions as may be required to fully inform itself with respect to the allegations presented by the complaint. These examinations may include biological fluid testing.

K. Any licensee who, after a hearing, is found guilty of unprofessional conduct or incompetence is subject to the following:

1. A decree of censure.

2. Probation as provided in this section.

3. Suspension or revocation of the license.

4. Imposition of a civil penalty of not less than two hundred fifty dollars nor more than ten thousand dollars for each violation of this chapter.

5. Any combination of these sanctions for a period of time or permanently and under conditions as the board deems appropriate for the protection of the public health and safety.

L. A licensee shall return to the board a revoked or suspended license within fifteen days after it is revoked or suspended.

M. The board may reinstate a person's license that has been suspended for less than two years pursuant to this section if the person pays a renewal fee and a reinstatement fee as prescribed by the board by rule and completes the reapplication process as prescribed by the board.

N. The board may reinstate a person's license that has been suspended for more than two years pursuant to this section if the person does all of the following:

1. Reapplies for a license pursuant to section 32-3423.

2. To the board's satisfaction, demonstrates competency to practice.

3. Completes any other requirements prescribed by the board.

§ 32-3443 Hearings and investigations; subpoenas

A. The board may issue subpoenas to compel attendance of witnesses and production of documents and administer oaths, take testimony, hear offers of proof and receive exhibits in evidence in connection with a board investigation or hearing. If a board subpoena is disobeyed, the board may invoke the aid of any court in this state in requiring the attendance and testimony of witnesses and the production of documentary evidence.

B. Any person appearing before the board may be represented by counsel.

C. The board may investigate any person to the extent necessary to determine if the person is engaged in the unlawful practice of occupational therapy. If an investigation indicates that a person may be practicing occupational therapy unlawfully, the board shall inform the person of the alleged violation. If the person does not immediately cease the unlawful practice of occupational therapy, the board may refer the matter for criminal prosecution pursuant to section 32-3445.

§ 32-3444 Judicial review

Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-3445 Violations; classification

A person is guilty of a class 1 misdemeanor who:

1. Obtains a license by fraud, by misrepresentation or in any manner other than that prescribed in this chapter.

2. Practices or assists in the practice of occupational therapy and is not licensed or exempt from the requirements of licensure pursuant to this chapter.

3. Violates any provision of this chapter.

§ 32-3446 Substance abuse recovery program; consent agreement

In lieu of a disciplinary proceeding prescribed by this article, the board may permit a licensee to actively participate in a board-approved substance abuse recovery program if:

1. The board has evidence that the licensee is an impaired professional.

2. The licensee has not been convicted of a felony relating to a controlled substance in a court of competent jurisdiction.

3. The licensee enters into a consent agreement and complies with all of the terms of the agreement, including making satisfactory progress in the program and adhering to any limitations on the licensee's practice imposed by the board to protect the public. If a licensee does not enter into a consent agreement, the board may begin an investigation and disciplinary proceedings.

4. As part of the agreement between the licensee and the board, the licensee signs a waiver that allows the substance abuse recovery program to release information to the board if the licensee does not comply with the requirements of this section or is unable to practice with reasonable skill or safety.

Chapter 35 Respiratory Care

Article 1 General Provisions

§ 32-3501 Definitions

In this chapter, unless the context otherwise requires:

1. "Board" means the board of respiratory care examiners.

2. "Diagnostic testing" includes obtaining physiologic samples and determining acid-base status and blood gas values from blood samples and pulmonary function measurements.

3. "Licensed respiratory care practitioner" means a respiratory therapist who is licensed pursuant to this chapter.

4. "Medical direction" means direction by a physician who is licensed pursuant to chapter 13 or 17 of this title.

5. "Practice of respiratory care" means direct and indirect respiratory care services that are performed in a clinic, hospital, skilled nursing facility or private dwelling or other place deemed appropriate or necessary by the board in accordance with the prescription or verbal order of a physician and performed under qualified medical direction. These services include:

(a) Administering pharmacological, diagnostic and therapeutic agents that are related to respiratory care procedures and necessary to implement a treatment, disease prevention, pulmonary rehabilitative or diagnostic regimen prescribed by a physician.

(b) Transcribing and implementing the written or verbal orders of a physician pertaining to the practice of respiratory care and observing and monitoring signs and symptoms, general behavior, general physical responses to respiratory care treatment and diagnostic testing, including a determination of whether these signs, symptoms, reactions, behavior or general responses exhibit abnormal characteristics.

(c) Implementing appropriate reporting, referral, respiratory care protocols or changes in treatment based on observed abnormalities and pursuant to a prescription by a physician who is licensed pursuant to chapter 13 or 17 of this title.

(d) Initiating emergency procedures pursuant to board rules or as otherwise permitted in this chapter.

(e) Respiratory therapy.

(f) Inhalation therapy.

(g) Therapeutics.

6. "Respiratory therapist" means a person who successfully completes a respiratory therapy training program approved by the board.

7. "Respiratory therapy training program" means a program that is accredited by the commission on accreditation for respiratory care or its successor agency and that is adopted by the board.

8. "Therapeutics" includes the following:

(a) Applying and monitoring oxygen therapy.

(b) Administering pharmacological agents to the cardiopulmonary systems.

(c) Ventilation therapy.

(d) Artificial airway care.

(e) Bronchial hygiene therapy.

(f) Cardiopulmonary resuscitation.

(g) Respiratory rehabilitation therapy.

(h) Barometric therapy.

(i) Assisting physicians licensed pursuant to chapter 13 or 17 of this title with hemodynamic monitoring.

9. "Unprofessional conduct" includes the following:

(a) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude.

(b) Habitual intemperance in the use of alcohol.

(c) Illegal use of narcotic or hypnotic drugs or substances.

(d) Gross incompetence, repeated incompetence or incompetence resulting in injury to a patient.

(e) Having professional connection with or lending the name of the licensee to an illegal practitioner of respiratory therapy or any of the other healing arts.

(f) Failing to refer a patient whose condition is beyond the training or ability of the respiratory therapist to another professional qualified to provide such service.

(g) Immorality or misconduct that tends to discredit the respiratory therapy profession.

(h) Having a license refused, revoked or suspended by any other state, territory, district or country, unless it can be shown that this was not caused by reasons that relate to the person's ability to safely and skillfully practice respiratory therapy or to an act of unprofessional conduct prescribed in this paragraph.

(i) Any conduct or practice that is contrary to recognized standards of ethics of the respiratory therapy profession or any conduct or practice that does or might constitute a danger to the health, welfare or safety of the patient or the public.

(j) Any conduct, practice or condition that does or might impair the person's ability to safely and skillfully practice respiratory therapy.

(k) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate a provision of this chapter.

(l) Failing to report to the board within ten calendar days an incident or incidents that appear to show the existence of a cause for disciplinary action or that a licensed respiratory care practitioner is or may be professionally incompetent or is or may be mentally or physically unable to engage safely in the practice of respiratory care.

§ 32-3502 Board of respiratory care examiners; membership, appointment, qualifications

A. The board of respiratory care examiners is established consisting of seven members appointed by the governor. Each board member shall be a resident of this state at the time of appointment. The governor shall appoint:

1. Three licensed respiratory care practitioners, at least one of whom is a technical director of a respiratory care department or respiratory care corporation or an officer or faculty member of a college, school or institution engaged in respiratory therapy education and at least one of whom is involved in direct patient care.

2. A physician who is licensed pursuant to chapter 13 or 17 of this title and who is knowledgeable in respiratory care.

3. Two public members who are not engaged, directly or indirectly, in the provision of health care services.

4. One hospital administrator.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. The respiratory care practitioner members shall:

1. Have at least five years of experience in respiratory care or respiratory therapy education.

2. Have been employed actively in direct patient care, respiratory therapy education or management or supervision of respiratory care for at least three years immediately preceding appointment.

3. Be licensed pursuant to this chapter.

D. The governor may appoint the licensed respiratory care practitioners from a list of seven qualified persons submitted to the governor by the Arizona society for respiratory care.

E. The governor may appoint the physician member from a list of three qualified persons submitted to the governor by the Arizona medical association and the Arizona osteopathic medical association.

F. The governor may appoint the hospital administrator member from a list of three qualified persons submitted to the governor by the Arizona hospital association.

G. The term of office of each member is three years, to begin and end on June 30. A member shall not serve for more than two consecutive terms.

H. The governor may remove board members for neglect of duty, malfeasance or misfeasance.

§ 32-3503 Meetings; organization; compensation

A. The board shall meet in January of each year to elect a chairman and other officers. The board shall hold at least one additional meeting before the end of each calendar year. Other meetings may be convened at the call of the chairman or the written request of any two board members. A majority of the members of the board constitutes a quorum.

B. All board meetings are open to the public.

C. Board members are eligible to receive compensation pursuant to section 38-611 and are entitled to reimbursement of expenses necessarily and properly incurred in carrying out board duties.

§ 32-3504 Powers and duties; inspection of records; personnel examinations; immunity

A. The board shall:

1. Enforce and administer this chapter.

2. Adopt rules necessary to administer this chapter.

3. Examine applicants for licensure pursuant to this chapter at times and places it designates.

4. Investigate each applicant for licensure, before a license is issued, in order to determine if the applicant is qualified pursuant to this chapter.

5. Keep a record of all its acts and proceedings pursuant to this chapter, including the issuance, refusal, renewal, suspension or revocation of licenses.

6. Require each applicant for initial licensure to submit a full set of fingerprints to the board for a state and federal criminal history records check pursuant to section 41-1750 and Public Law 92-544.

7. Maintain a register that contains the name, the last known place of residence and the date and number of the license of all persons who are licensed pursuant to this chapter.

8. Compile, once every two years, a list of licensed respiratory care practitioners who are authorized to practice in this state.

9. Establish minimum annual continuing education requirements for persons who are licensed under this chapter. The board shall approve organizations from which continuing education classes may be accepted.

10. Establish a confidential program for the monitoring of licensees who are chemically dependent and who enroll in rehabilitation programs that meet the criteria established by the board. The board may take further action if the licensee refuses to enter into a stipulated agreement or fails to comply with its terms. In order to protect the public health and safety, the confidentiality requirements of this paragraph do not apply if the licensee does not comply with the stipulated agreement.

B. The board, in approving education programs for respiratory therapists, shall consider the requirements and standards set by the commission on accreditation for respiratory care or its successor organization. The board may recognize examinations administered by a national board for respiratory care approved by the board.

C. The board may conduct examinations under a uniform examination system and may make arrangements with the national board of respiratory care or other organizations regarding examination materials it determines necessary and desirable.

D. The board and its members, personnel and board examiners are personally immune from suit with respect to all acts done and actions taken in good faith and in furtherance of the purposes of this chapter.

§ 32-3505 Board of respiratory care examiners fund

(L24, Ch.222, sec. 45. Eff. until 7/1/28)

A. The board of respiratory care examiners fund is established. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies from whatever source that come into the possession of the board in the state general fund and deposit the remaining eighty-five percent in the board of respiratory care examiners fund. Monies in the board of respiratory care examiners fund may be used by the board for payments of all necessary board expenses.

B. Monies deposited in the board of respiratory care examiners fund are subject to section 35-143.01.

§ 32-3505 (Version 2) Board of respiratory care examiners fund

(L24, Ch. 222, sec. 46. Eff. 7/1/28)

A. The board of respiratory care examiners fund is established. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies from whatever source that come into the possession of the board in the state general fund and deposit the remaining ninety percent in the board of respiratory care examiners fund. Monies in the board of respiratory care examiners fund may be used by the board for payments of all necessary board expenses.

B. Monies deposited in the board of respiratory care examiners fund are subject to section 35-143.01.

§ 32-3506 Executive director; duties; compensation

A. Subject to title 41, chapter 4, article 4, the board shall appoint an executive director who serves at the pleasure of the board. The executive director shall not be a board member.

B. The executive director and other board employees are eligible to receive compensation as determined pursuant to section 38-611.

C. The executive director shall:

1. Perform the board's administrative duties.

2. Subject to title 41, chapter 4, article 4 and, as applicable, articles 5 and 6, employ, evaluate, dismiss, discipline and direct personnel as necessary to carry out board functions.

3. Initiate an investigation if there is reason to believe that a licensee is incompetent, mentally or physically unable to safely practice respiratory care or engaged in unprofessional conduct.

4. Issue subpoenas if necessary to compel the attendance and testimony of witnesses and the production of books, records, documents and evidence.

5. As directed by the board, sign and execute disciplinary orders, rehabilitative orders and notices of hearings.

6. On behalf of the board, enter into stipulated agreements with licensees for the treatment, rehabilitation and monitoring of chemical substance abuse or misuse.

7. On behalf of the board, enter into stipulated agreements with licensees for the confidential treatment, rehabilitation and monitoring of chemical dependency. A licensee who materially fails to comply with a program requirement shall be reported to the board and terminated from the confidential program established pursuant to section 32-3504. Any records of a licensee who is terminated from a confidential program are no longer confidential or exempt from the public records law. Notwithstanding any law to the contrary, stipulated agreements are not public records if the following conditions are met:

(a) The licensee voluntarily agrees to participate in the confidential program.

(b) The licensee complies with all treatment requirements or recommendations, including participation in alcoholics anonymous or an equivalent twelve-step program and support group.

(c) The licensee refrains from the practice of respiratory care until the return to respiratory care has been approved by the treatment program and the executive director or the executive director's designee.

(d) The licensee complies with all monitoring requirements of the stipulated agreement, including random bodily fluid testing.

(e) The licensee's respiratory care employer is notified of the licensee's chemical dependency and participation in the confidential program and is provided a copy of the stipulated agreement.

8. Perform all other duties required by the board.

Article 2 Licensure

§ 32-3521 Allowable respiratory care services; transactions by medical equipment dealers

A. This chapter does not prohibit:

1. The performance of respiratory care services that are an integral part of a program of study by students who are enrolled in respiratory therapy training programs if the services are rendered under the supervision of a licensed respiratory care practitioner or a physician licensed pursuant to chapter 13 or 17 of this title.

2. Self-care by a patient or the gratuitous care by a friend or relative who does not purport to be a licensed respiratory care practitioner.

3. The performance of respiratory care services in case of an emergency, including an epidemic or public disaster.

4. The performance of respiratory care services by registered, certified or licensed individuals as provided pursuant to chapters 7, 8, 11, 13, 14, 15, 17, 18, 19, 21, 25, 28 and 29 of this title and title 36, chapter 21.1.

5. The performance of specific diagnostic testing techniques relating to respiratory care by a person under medical direction in a clinical laboratory that is regulated pursuant to title 36, chapter 4.1.

6. The performance of respiratory care services by a person who is employed as a respiratory therapist by the United States government or any of its agencies if that person provides respiratory therapy only under the direction or control of the federal government or an agency of the federal government.

7. Medical equipment dealers who comply with subsection B of this section from taking a prescription for respiratory equipment, as long as that prescription is verified by a licensed respiratory therapist, and delivering oxygen equipment to or demonstrating the operation, safety and maintenance of oxygen equipment at a patient's home.

B. In a sale or lease of respiratory equipment by a medical equipment dealer to a patient, the terms of the sale or lease shall be in writing and signed by the parties describing the date of the sale or lease, the equipment to be sold or leased and the cost and method of payment for the equipment and shall include verification by a licensed respiratory therapist attesting that purchase or lease of the equipment is consistent with the prescription and the needs of the patient. The patient shall be provided a copy of all documents pertaining to the sale or lease at the time the documents are signed by the parties.

§ 32-3522 Application for licensure

A. All applications for licenses to practice respiratory care shall be filed with the board.

B. Each application shall:

1. Be accompanied by the prescribed application fee.

2. Be signed by the applicant.

3. Contain a statement under oath of the facts entitling the applicant to take an examination or to receive a license without examination.

4. Contain information the board deems necessary to determine the qualifications of the applicant.

C. If an applicant's application is based on a diploma from a foreign respiratory therapy school or a certificate of license issued by another state, he shall furnish documentary evidence, to the satisfaction of the board, that he has completed courses of study which are at least equivalent to the minimum standards established by the board in its rules.

§ 32-3523 Qualifications

A. An applicant for a license shall:

1. Be a high school graduate or the equivalent as prescribed by the board by rule.

2. Be a graduate of a respiratory therapy training program.

3. Pass a written examination approved by the board or be eligible to take a written examination pursuant to section 32-3522.

4. Not have committed acts or crimes which constitute grounds for denial of a license or disciplinary action pursuant to section 32-3552.

B. An applicant who otherwise meets the requirements for licensure pursuant to this chapter but who has not practiced respiratory care or held a license in this or any other state during the three years immediately preceding the date the applicant files an application for licensure shall provide documentation of completing at least twenty board approved continuing education units relating to clinical practice.

§ 32-3524 Licensure without examination

The board may issue a license to an applicant without examination if the applicant:

1. Files an application pursuant to section 32-3522.

2. Satisfies the requirements prescribed in section 32-3523.

3. At the time of applying, is either:

(a) Licensed as a licensed respiratory care practitioner in another state in which, in the opinion of the board, the licensure requirements are at least equivalent to those in this state and has passed, to the satisfaction of the board, an examination in the state where the applicant is licensed that is, in the opinion of the board, equivalent to the examination given under its direction.

(b) Registered as a respiratory therapist by a national organization for respiratory care approved by the board.

§ 32-3525 Renewal of license; late renewal

Except as provided in section 32-4301, a license issued under this chapter is subject to renewal every other year on or before the birthday of the licensee and expires unless renewed. The board may renew an expired license within ninety days after the expiration of the license if the applicant has complied with all late renewal application requirements and paid the application and renewal fees.

§ 32-3526 Fees

A. The board by rule shall establish and collect fees that do not exceed the following:

1. Application for a license, one hundred dollars.

2. Application based on a diploma from a foreign respiratory therapy school, two hundred dollars.

3. Initial license, two hundred dollars.

4. Renewal of a license or late renewal of a license, two hundred dollars.

5. Duplicate license, fifty dollars.

B. The board shall prescribe the fee necessary to obtain a copy of the list of licensed respiratory care practitioners. Any interested person may obtain a copy on payment of the fee.

C. The board by rule may establish and collect fees for license renewals and verifications and for checks that are returned for nonpayment because of insufficient monies, payments stopped or closed accounts.

Article 3 Regulation

§ 32-3551 Use of title; initials; prohibited acts

A. A person who is licensed pursuant to this chapter may use:

1. The title "licensed respiratory care practitioner" or the initials "R.C.P." which indicate that he is a licensed respiratory care practitioner.

2. An initial or other suffix which indicates possession of a specific academic degree which is earned at an institution accredited by an accrediting agency recognized by the national commission on accrediting and which the board determines is at least equivalent to its minimum standards.

3. An initial or initials which indicate possession of a specific credential issued by the national board for respiratory care, inc.

B. A person who is licensed pursuant to this chapter shall not use the prefix "Dr.", the word "doctor" or any other prefix, suffix or initials which indicate or imply that he is licensed pursuant to any other chapter of this title if he is not.

C. A student enrolled in a respiratory therapy training program shall be identified as a respiratory care practitioner student or by the initials "R.C.P.S.".

§ 32-3552 Grounds for denial of licenses or disciplinary action; judicial review

A. The board may deny an application for a license or take disciplinary action pursuant to section 32-3553 if the applicant or licensee:

1. Makes a material misrepresentation on an application or procures a license by fraud.

2. Negligently or knowingly employs an unlicensed person who represents himself as a licensed respiratory care practitioner.

3. Commits an act of unprofessional conduct.

4. Is convicted of a felony if the conviction has not been set aside by the court. Conviction by a court of competent jurisdiction is presumptive evidence that the person committed the felony.

B. Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 32-3553 Disciplinary action; duty to report; immunity; proceedings; board action; confidentiality

A. The board on its own motion may investigate any evidence that relates to a licensee and that appears to show the existence of any of the causes for disciplinary action prescribed in section 32-3552 or that a licensed respiratory care practitioner is or may be professionally incompetent or is or may be mentally or physically unable to engage safely in the practice of respiratory care. A licensed respiratory care practitioner or a health care institution as defined in section 36-401 shall, and any other person may, report to the board information the licensed respiratory practitioner, health care institution or individual may have that appears to show the existence of any of the causes for disciplinary action prescribed in section 32-3552 or that a licensed respiratory care practitioner is or may be professionally incompetent or is or may be mentally or physically unable to engage safely in the practice of respiratory care.

B. A licensed respiratory care practitioner, a health care institution or any other person that reports or provides information to the board in good faith is not subject to an action for civil damages as a result of reporting the information, and on request the name of the reporter shall not be disclosed unless the information is essential to proceedings conducted pursuant to this section. The board shall report a health care institution that fails to report as required by this section to the institution's licensing agency.

C. Within ninety days of receipt of information, the board shall notify the licensed respiratory care practitioner about whom information has been received as to the content of the information. Within twenty days after notification, the licensed respiratory care practitioner shall submit to the board an answer to the allegation contained in the initial complaint notification.

D. A health care institution shall inform the board if a licensed respiratory care practitioner is terminated due to a cause listed in section 32-3552, along with a general statement of the reasons that led the health care institution to take the action.

E. If the board finds, based on the information it receives pursuant to this section, that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the board may order a summary suspension of a license pending proceedings for revocation or other action. If an order of summary suspension is issued, the licensee shall also be served with a written notice of complaint and formal hearing pursuant to title 41, chapter 6, article 10 setting forth the charges made against the licensee and is entitled to a formal hearing before the board on the charges within sixty days.

F. On determination of reasonable cause, the board or, if delegated by the board, the executive director may require a licensee or applicant to undergo at the expense of the licensee or applicant any combination of mental, physical or psychological examinations, assessments or skills evaluations necessary to determine the person's competence or ability to practice safely. These examinations may include bodily fluid testing and other examinations known to detect the presence of alcohol or drugs. If the executive director orders the licensee or applicant to undertake an examination, assessment or evaluation pursuant to this subsection and the licensee or applicant fails to affirm to the board in writing within fifteen days after receipt of the notice of the order that the licensee or applicant intends to comply with the order, the executive director shall refer the matter to the board to allow the board to determine whether to issue an order pursuant to this subsection. At each regular meeting of the board, the executive director shall report to the board data concerning orders issued by the executive director pursuant to this subsection since the last regular meeting of the board and any other data requested by the board.

G. If, after completing its investigation, the board finds that the information provided pursuant to this section is not of sufficient seriousness to merit direct action against the license of the licensed respiratory care practitioner, it may take any of the following actions:

1. Dismiss the complaint if the board believes that the information is without merit.

2. File a letter of concern if the board believes that while there is insufficient evidence to support direct action against the license of the licensed respiratory care practitioner there is sufficient evidence for the board to notify the licensee that continuing the activities that led to the information being submitted to the board may result in action against the license.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

H. If after completing the investigation the board believes that the information provided pursuant to this section is or may be true, the board may request an interview with the licensee. If the licensee refuses this request or is interviewed and the results indicate that suspension or revocation of the license might be in order, the board shall issue a formal complaint and hold a formal hearing pursuant to title 41, chapter 6, article 10. If, after completing the informal interview, the board finds that the information provided pursuant to this section is not of sufficient seriousness to merit suspension or revocation of the license, the board may either dismiss the complaint if the board believes the complaint is without merit or take any combination of the following actions:

1. File a letter of concern if the board believes that while there is insufficient evidence to support direct action against the license there is sufficient evidence for the board to notify the licensee that continuation of the activities that led to the information being submitted to the board may result in action against that person's license.

2. Issue a decree of censure, which constitutes an official action against the respiratory care practitioner's license.

3. Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the licensed respiratory care practitioner concerned.

4. Restrict the licensee's practice to specific settings in a manner the board determines best protects the public health and safety.

5. Issue a civil penalty of up to five hundred dollars per violation.

6. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

I. Failure to comply with probation is cause for initiation of a formal proceeding for suspension or revocation of a license pursuant to this section based on the information considered by the board at the informal interview and any other acts or conduct alleged to be in violation of this chapter or rules adopted pursuant to this chapter.

J. If the board finds that the information provided pursuant to this section warrants suspension or revocation of a license issued under this chapter, the board shall immediately initiate formal proceedings for the revocation or suspension of the license as provided in title 41, chapter 6, article 10. If notice of the hearing is served by certified mail, service is complete on the date the notice is placed in the mail. At the conclusion of that hearing the board may dismiss the complaint or revoke or suspend the license and may take any combination of actions listed in subsection H of this section.

K. A licensee shall respond in writing to the board within thirty days after notice of the hearing is served as prescribed in subsection J of this section. The board may consider a licensee's failure to respond within this time as an admission by default to the allegations stated in the complaint. The board may then take any disciplinary action allowed by this chapter without conducting a hearing.

L. In connection with the board investigation the board or its duly authorized agents or employees at all reasonable times may examine and copy any documents, reports, records or other physical evidence of any person being investigated, or the reports, the records and any of the documents maintained by and in the possession of any hospital, clinic, physician's office, or other public or private agency, and any health care institution as defined in section 36-401, that relate to the person's professional competence, unprofessional conduct or mental or physical ability to safely practice respiratory care. These requests shall be made in writing.

M. Patient records, hospital records, medical staff records, medical staff review committee records, clinical records, medical reports, laboratory statements and reports, any file, film, other report or oral statement relating to the care of patients, any information from which a patient or a patient's family may be identified or information received or reports kept by the board as a result of the investigation procedure prescribed in this chapter and testimony concerning these records and proceedings relating to their creation are not available to the public, shall be kept confidential by the board and are subject to the same provisions concerning discovery and use and legal actions as are the original records in the possession and control of the hospital, the health care institutions or health care providers or other individual, practitioner or agency from which they are secured. The board shall use the records and testimony during the course of investigations and proceedings pursuant to this chapter.

§ 32-3554 Reinstatement of license; modification of probation

A. If the license of a licensed respiratory care practitioner is revoked or probation is imposed he may apply to the board for reinstatement of his license or modification of the conditions of the probation one year after the date of revocation or imposition of probation.

B. The board may accept or reject an application for reinstatement or modification of probation and may require an examination for reinstatement or modification.

§ 32-3555 Hearings and investigations; subpoenas; representation

A. The board may issue subpoenas to compel attendance of witnesses and the production of documents and administer oaths, take testimony, hear offers of proof and receive exhibits in evidence in connection with a board investigation or hearing. If a board subpoena is disobeyed, the board may invoke the aid of any court in this state in requiring the attendance and testimony of witnesses and the production of documentary evidence.

B. A person appearing before the board may be represented by counsel.

§ 32-3556 Unlawful acts

From and after August 31, 1991, it is unlawful for a person to:

1. Engage in the practice of respiratory care unless he is licensed or excepted from licensure pursuant to this chapter.

2. Represent himself to be a licensed respiratory care practitioner or an inhalation therapist or use the letters "R.C.P." or "I.T." unless he is licensed pursuant to this chapter.

§ 32-3557 Injunctive relief; bond; service of process

A. In addition to all other available remedies, if the board has any reason to believe that a person has violated a provision of this chapter or a board rule, the board through the attorney general or the county attorney of the county in which the violation is alleged to have occurred may apply to the superior court in that county for an injunction restraining that person from engaging in the violation.

B. A temporary restraining order, a preliminary injunction or a permanent injunction shall be granted without bond.

C. Service of process may be on the defendant in any county of this state where he is found.

§ 32-3558 Violation; classification

A person who violates a provision of this chapter is guilty of a class 1 misdemeanor.

Chapter 36 Real Estate Appraisal

Article 1 General Provisions

§ 32-3601 Definitions

In this chapter, unless the context otherwise requires:

1. "Appraisal" or "real estate appraisal" means a statement that is independently and impartially prepared by an individual setting forth an opinion as to the market value of real property as of a specific date and supported by the presentation and analysis of relevant market information.

2. "Appraisal assignment" means an engagement for which a real estate appraiser is employed or retained to act, or would be perceived by third parties or the public in acting, as a disinterested third party in rendering an unbiased analysis, opinion or conclusion relating to the nature, quality, value or utility of specified interests in or aspects of identified real estate.

3. "Appraisal foundation" means the appraisal foundation incorporated as an Illinois nonprofit corporation on November 30, 1987.

4. "Appraisal report" means any communication, written or oral, of an appraisal.

5. "Appraisal review" means the act of reviewing or the report that follows a review of an appraisal assignment or appraisal report in which a real estate appraiser forms an opinion as to the adequacy and appropriateness of the report being reviewed.

6. "Appraisal standards board" means the appraisal standards board appointed by the board of trustees of the appraisal foundation to develop, interpret and amend the uniform standards of professional appraisal practice.

7. "Appraisal subcommittee" means the subcommittee of the federal financial institutions examination council created pursuant to 12 United States Code section 3310 and chapter 34A, as amended.

8. "Appraiser qualifications board" means the appraiser qualifications board that is appointed by the board of trustees of the appraisal foundation to establish the minimum education, experience and examination requirements for real estate appraisers.

9. "Complex one to four residential units" means property that is atypical for the marketplace. Atypical factors may include architectural style, age of improvements, size of improvements, size of lot, neighborhood land use, potential environmental hazard liability, leasehold interests, limited readily available comparable sales data or other unusual factors.

10. "Course approval" means the act of the deputy director reviewing course materials to form an opinion as to the adequacy and appropriateness of the course for licensing pursuant to section 32-3613, certification pursuant to section 32-3614 and continuing education as prescribed in section 32-3625 in accordance with the appraiser qualifications board and this chapter.

11. "Department" means the department of insurance and financial institutions.

12. "Deputy director" means the deputy director of the financial institutions division of the department.

13. "Federal financial institutions examination council" means that agency of the federal government created pursuant to 12 United States Code chapters 34 and 34A, as amended.

14. "Federally related transaction" means any real estate related financial transaction that a federal financial institution's regulatory agency or the resolution trust corporation engages in, contracts for or regulates and that requires an appraisal.

15. "Property tax agent" means an individual who is designated by a person or is an employee of an entity designated as an agent pursuant to section 42-16001, who acts on behalf of a person who owns, controls or possesses property valued by a county assessor and who receives a fee for the analysis of any matter relating to the review of the valuation of the person's property before the assessor. Property tax agent does not include a person who is admitted to practice law in this state, an employee of the person owning, controlling or possessing the property or an employee of an entity designated pursuant to section 42-16001, if the employee is performing a secretarial, clerical or administrative support function.

16. "Real estate" means an identified parcel or tract of land, including improvements, if any.

17. "Real estate related financial transaction" means any transaction involving the sale of, lease of, purchase of, investment in or exchange of real property, including interests in property or the financing of property, the refinancing of real property or interests in real property and the use of real property or interests in property as security for a loan or investment, including mortgage-backed securities.

18. "Real property" means one or more defined interests, benefits and rights inherent in the ownership of real estate.

19. "Registered trainee appraiser" means a person who meets both of the following requirements:

(a) Is registered with the deputy director and meets the appraiser qualifications board's qualifications for trainee appraisers to perform appraisal services only under the direct supervision of a certified appraiser who has met the minimum criteria to be a supervisory appraiser.

(b) Accepts assignments only from the registered trainee appraiser's supervisory appraiser.

20. "Review appraiser" means a person who engages in the activity of reviewing and evaluating the appraisal work of others from the perspective of an appraiser, generally for compensation as a separate skill. This includes the function of reviewing an appraisal report or a file memorandum setting forth the results of the review process.

21. "Standards of professional appraisal practice" means the uniform standards of professional appraisal practice promulgated by the appraisal standards board of the appraisal foundation.

22. "State-licensed or state-certified appraiser" means a person who develops and communicates appraisals and who holds a current, valid license or certificate issued under this chapter.

23. "Supervisory appraiser" means a state-certified appraiser who has a supervisory appraiser designation and who:

(a) Has been in good standing for the last three years in the jurisdiction in which the registered trainee appraiser practices.

(b) Has not been disciplined in a manner that affects the supervisory appraiser's eligibility to engage in appraisal practice in any jurisdiction in the last three years.

(c) Directly supervises registered trainee appraisers by doing the following:

(i) Accepting responsibility for an appraisal by signing and certifying that the appraisal complies with the uniform standards of professional appraisal practice.

(ii) Reviewing and signing all registered trainee appraiser reports.

24. "Value" means the monetary relationship between properties and those who buy, sell or use those properties.

§ 32-3602 Applicability of chapter

This chapter does not apply to:

1. A real estate broker or salesperson who is licensed in this state and who, when acting as such, gives an opinion as to the price of real estate if this opinion is not referred to as an appraisal.

2. A natural person, a corporation through its officers or a partnership through its partners that gives an opinion of value of that person's or its own property and does not receive special compensation for the transaction if this opinion is not referred to as an appraisal.

3. An attorney in the performance of that person's duties as an attorney.

4. A mortgage banker, mortgage broker or commercial mortgage banker who is licensed in this state and who, when acting as such, prepares a report analyzing real property if the report is not made for the primary purpose of establishing the sale or market value of the property.

5. An individual who is otherwise subject to licensing or certification by law and whose duties require appraisal of real property for purposes of tax assessment.

6. An engineer or architect registered in this state or a contractor or insurance producer licensed in this state who, when acting as such, prepares a report analyzing real property if the report utilizes the specialized knowledge of the registered engineer or architect or the licensed contractor or insurance producer.

7. A property tax agent who is registered in this state and who, when acting as such, prepares a report analyzing real estate if the report is made for purposes of tax assessment or tax valuation of the real estate.

8. An individual appraising real property only for the purpose of providing an opinion in a judicial proceeding or an individual providing an opinion in a judicial proceeding. An individual providing an opinion under the exemption of this paragraph shall not represent or imply in any report or testimony that the individual testifying is licensed or certified under this chapter.

9. A person who produces a statement that is provided to any other person concerning the estimated value of real property through an internet website, automated valuation or other software program or other means of comparative market analysis and who discloses that the estimate is not an appraisal.

§ 32-3603 Registration, license or certificate use; exception

A. All real estate appraisals and appraisal reviews performed on real property in this state shall be performed only by individuals who are registered, licensed or certified in accordance with the requirements of this chapter. No person, other than a registered trainee appraiser or a state-licensed or state-certified appraiser, may assume or use that title or any title, designation or abbreviation likely to create the impression of registration as a trainee appraiser or licensure or certification as an appraiser by this state.

B. No person other than a state-licensed or state-certified appraiser may receive a fee for a real estate appraisal or an appraisal review of real property in this state. This subsection does not prohibit a supervisory appraiser from remitting compensation to a registered trainee appraiser during the course of training.

§ 32-3605 Deputy director; duties; powers; immunity

A. The deputy director shall adopt rules in aid or in furtherance of this chapter.

B. The deputy director shall:

1. Adopt standards for appraisal practice that is regulated by this chapter. The standards at a minimum shall be equivalent to the standards of professional appraisal practice.

2. In prescribing criteria for certification, adopt criteria that at a minimum are equal to the minimum criteria for certification adopted by the appraiser qualifications board.

3. In prescribing criteria for licensing and registration, adopt criteria that at a minimum are equal to the minimum criteria for licensing and registration adopted by the appraiser qualifications board.

4. Further define by rule with respect to state-licensed or state-certified appraisers appropriate and reasonable educational experience, appraisal experience and equivalent experience that meets the statutory requirement of this chapter.

5. Adopt the national examination as approved by the appraiser qualifications board for state-certified appraisers.

6. Adopt the national examination as approved by the appraiser qualifications board for state-licensed appraisers.

7. Establish administrative procedures for:

(a) Processing applications for licenses and certificates, including registration certificates.

(b) Approving or disapproving applications for registration, licensure and certification.

(c) Issuing licenses and certificates, including registration certificates.

8. Define by rule, with respect to registered trainee appraisers and state-licensed and state-certified appraisers, the continuing education requirements for the renewal of licenses or certificates that satisfy the statutory requirements provided in this chapter.

9. Periodically review the requirements for the development and communication of appraisals provided in this chapter and adopt rules explaining and interpreting the requirements.

10. Define and explain by rule each stage and step associated with the administrative procedures for the disciplinary process pursuant to this chapter, including:

(a) Prescribing minimum criteria for accepting a complaint against a registered trainee appraiser or a licensed or certified appraiser. The deputy director may not consider a complaint for administrative action if the complaint either:

(i) Relates to an appraisal that was completed more than five years before the complaint was submitted to the deputy director or more than two years after final disposition of any judicial proceeding in which the appraisal was an issue, whichever period of time is greater.

(ii) Is filed against a person who is a staff person of the department and the person is a licensed or certified appraiser and the complaint is against the person's license or certificate and relates to the person's performance of duties. This item applies to a contract investigator who is under contract with the department for the performance of an appraisal review as defined by the uniform standards of professional appraisal practice.

(b) Defining the process and procedures used in investigating the allegations of the complaint. The deputy director shall consolidate complaints that are filed within a six-month period of time if the complaints are against the same appraiser, relate to the same appraisal and property and are filed by an entity that is subject to the mandatory reporting provisions of the Dodd-Frank Wall Street reform and consumer protection act (P.L. 111-203; 124 Stat. 1376). Complaints that are consolidated pursuant to this subdivision must be considered and adjudicated as one complaint.

(c) Defining the process and procedures used in hearings on the complaint, including a description of the rights of the deputy director and any person who is alleged to have committed the violation.

(d) Establishing criteria to be used in determining the appropriate actions for violations.

11. Communicate information that is useful to the public and appraisers relating to actions for violations.

12. Issue decrees of censure, fix periods and terms of probation and suspend and revoke licenses and certificates pursuant to the disciplinary proceedings provided for in section 32-3631.

13. At least monthly transmit to the appraisal subcommittee a listing of all appraisal management companies that have received a state certificate of registration in accordance with this chapter.

14. Investigate and assess potential law or order violations and discipline, suspend, terminate or deny registration renewals of appraisal management companies that violate laws or orders. The deputy director shall report violations of appraisal-related laws or orders and disciplinary and enforcement actions to the appraisal subcommittee.

15. Transmit the national registry fee collected pursuant to section 32-3607 to the appraisal subcommittee.

16. Establish the fees in accordance with section 32-3607.

17. Receive applications for state licenses and certificates.

18. Maintain a registry of the names and addresses of persons who are registered, licensed or certified under this chapter.

19. Retain records and all application materials submitted to the deputy director.

20. Publish on the department's website a current list of supervisory appraisers and registered trainee appraisers.

21. Perform such other functions and duties as may be necessary to carry out this chapter.

C. The deputy director may accept and spend federal monies and grants, gifts, contributions and devises from any public or private source to assist in carrying out the purposes of this chapter. These monies do not revert to the state general fund at the end of the fiscal year.

D. The deputy director may impose civil penalties pursuant to section 32-3631.

§ 32-3607 Fees; use of credit cards; appraisal subcommittee fund

A. The deputy director shall charge and collect fees that are sufficient to fund the activities necessary to carry out this chapter. The fees include:

1. An application fee for licensure or certification of not more than $400.

2. An application fee for a resident temporary license or certificate of not more than $400.

3. An examination fee in an amount to be determined by the deputy director.

4. A fee for renewal of a license, certificate or resident temporary license or certificate of not more than $425.

5. A delinquent renewal fee in addition to the renewal fee of not more than $25.

6. A two-year national registry fee of not to exceed the actual cost of twice the current annual national registry fee for a state-licensed or state-certified appraiser.

7. A one-year national registry fee not to exceed the actual cost of the current annual national registry fee for appraisal management companies.

8. A nonresident temporary licensure or certification fee of not more than $150.

9. A course approval fee of not more than $500.

10. An application fee to be a registered trainee appraiser in an amount to be determined by the deputy director.

B. If the appraisal subcommittee raises the national registry fee during the second year of a biennial license or certificate, state-licensed and state-certified appraisers shall pay the additional national registry fee on demand by the deputy director. Failure to pay the additional fee within thirty days after notice by the deputy director subjects the license or certificate holder to a penalty of twice the amount owed but not to exceed $20. The deputy director shall not renew a license or certificate until all outstanding obligations of the license or certificate holder are paid.

C. Pursuant to section 35-142, subsection J, the deputy director may accept a credit card or debit card for the payment of fees established by this section. The deputy director may impose a convenience fee for payment made pursuant to this subsection in an amount to be determined by the deputy director.

D. The appraisal subcommittee fund is established consisting of national registry fee monies collected pursuant to this section. The department shall administer the fund. The department shall use the monies to promptly remit the national registry fees to the appraisal subcommittee for state-licensed appraisers, state-certified appraisers, registered appraisal management companies or appraisal management companies that operate as a subsidiary of a federally regulated financial institution.

§ 32-3609 Confidential records

Except as otherwise provided by law, the following records are confidential:

1. Questions contained in any examination administered by or for the deputy director or in any examination submitted to the deputy director for course approval.

2. Questions asked and the answers of individual examinees, except that the deputy director shall provide the grades of each examinee for public inspection and copying.

3. Appraisal reports or appraisal reviews and supporting documentation deemed confidential under the uniform standards of professional appraisal practice.

4. All documents associated with a complaint as prescribed by section 6-129.

§ 32-3610 Uniform standards of professional appraisal practice; state standards; exception

The uniform standards of professional appraisal practice as published by the appraisal standards board are the standards for the appraisal practice in this state unless the deputy director objects.

Article 2 Registration, Licensure and Certification

§ 32-3611 Registration, licensure and certification process

A. Applications for original registration, licensure or certification, renewals and examinations shall be made in writing to the deputy director on forms approved by the deputy director.

B. Appropriate fees, as fixed by the deputy director pursuant to section 32-3607, shall accompany all applications for original registration, licensure or certification, renewal and examination.

C. At the time of filing an application for registration, licensure or certification, each applicant shall sign a pledge to comply with the standards set forth in this chapter and shall state that the applicant understands the types of misconduct for which disciplinary proceedings may be initiated against a registered trainee appraiser or a state-licensed or state-certified appraiser, as set forth in this chapter.

D. Except as otherwise provided in this chapter, the deputy director shall require such other proof and request such documents, through the application or otherwise, as the deputy director deems necessary for the interests of the public and to verify the competency of the applicant and shall require that the applicant for registration, licensure or certification:

1. Be at least eighteen years of age and a citizen of the United States or a qualified alien as defined in 8 United States Code section 1641.

2. Not have had a license or certificate denied pursuant to this chapter within one year immediately preceding the application.

3. Not have had a license or certificate revoked pursuant to this chapter within five years immediately preceding the application.

4. State whether or not the applicant has ever been convicted in a court of competent jurisdiction in this or any other state of a felony or of forgery, theft, extortion or conspiracy to defraud or any other crime involving dishonesty or moral turpitude.

E. Applications for registration, licensure or certification by persons who are charged or under indictment for fraud involving appraisal of real property may be denied pending final disposition of the charge or indictment. On final disposition, the deputy director shall review the proceedings and act on the application.

§ 32-3612 Classifications of licensure, registration and certification

The following classifications are established:

1. State-certified general real estate appraisers consisting of those persons meeting the requirements for certification relating to the appraisal or appraisal review of all types of real property.

2. State-certified residential real estate appraisers consisting of those persons meeting the requirements for certification relating to the appraisal or appraisal review of one to four residential units without regard to value or complexity. The classification includes the appraisal for federally and nonfederally related transactions of vacant or unimproved land that is used for one to four family purposes or for which the highest and best use is for one to four family purposes. This classification does not include the appraisal of a subdivision for which a development analysis or appraisal is necessary.

3. State-licensed real estate appraisers consisting of those persons meeting the requirements for licensing relating to appraisal or appraisal review of noncomplex one to four residential units having a value of less than $1,000,000 and complex one to four residential units having a value of less than $400,000. The classification includes the appraisal for nonfederally related transactions of vacant or unimproved land that is used for one to four family purposes or for which the highest and best use is for one to four family purposes. This classification does not include the appraisal of subdivisions for which a development analysis or appraisal is necessary.

4. Registered trainee appraisers who may not appraise any property type without being subject to the direct control and supervision of the registered trainee appraiser's designated supervisory appraiser.

5. Supervisory appraisers.

§ 32-3613 Application and qualification requirements for licensure

A. An application for licensure and examination shall be made on forms as prescribed by the deputy director and be accompanied by the required fees.

B. Persons filing for licensure shall meet the minimum criteria for licensure established by the deputy director under section 32-3605, subsection B, paragraph 3.

C. A person may not be a state-licensed appraiser unless the person has achieved a passing grade on the national examination approved by the appraiser qualifications board.

§ 32-3614 Application and qualification requirements for certification

A. An application for certification and examination shall be made on forms prescribed by the deputy director and be accompanied by the required fees.

B. Persons filing for certification shall meet the minimum criteria for certification established by the deputy director under section 32-3605, subsection B, paragraph 2 and section 32-3615.

C. A person may not be a state-certified real estate appraiser unless the person has achieved a passing grade on the national examination approved by the appraiser qualifications board.

D. Persons presenting evidence showing successful completion of the requirements of this section shall be recognized as having met the qualifications as a state-certified real estate appraiser.

§ 32-3614.01 Application for registered trainee appraiser certificates

An application for a registered trainee appraiser certificate shall be made on a form prescribed by the deputy director and be accompanied by the fees prescribed by section 32-3607. An applicant must complete education requirements as outlined by the appraiser qualifications board. The applicant must submit proof that the applicant has successfully passed the required courses that are specifically oriented to the requirements and responsibilities of supervisory appraisers and trainee appraisers and that comply with the specifications established by the appraiser qualifications board.

§ 32-3614.02 Application for supervisory appraiser designation

An application for a supervisory appraiser designation shall be made on a form prescribed by the deputy director. The applicant must submit proof of successful completion of a course that is specifically oriented to the requirements and responsibilities of supervisory appraisers and trainee appraisers and that complies with the specifications established by the appraiser qualifications board.

§ 32-3615 Experience requirement for licensure or certification

A. Each applicant for licensure or certification shall have experience that was acquired within ten years immediately preceding the filing of the application for licensure or certification.

B. Each applicant for licensure or certification shall furnish under oath a detailed listing of the real estate or other appraisal reports, review reports or filed memoranda for each year for which experience is claimed by the applicant. On request, the applicant shall make available to the deputy director for examination copies of appraisal reports that the applicant has prepared in the course of the applicant's appraisal experience.

§ 32-3616 Terms of license or certificate

A. Except as provided in subsection B of this section, a license or certificate issued under this chapter is valid for two years from the date of issuance. The expiration date of the license or certificate shall appear on the license or certificate.

B. A registration certificate issued for registered trainee appraisers shall be valid for three years from the date of issuance. The expiration date of the registration shall appear on the registration certificate.

§ 32-3617 Nonresident temporary licensure or certification

A. Every applicant for nonresident temporary licensure or certification under this chapter who is not a resident of this state shall submit, with the application for nonresident temporary licensure or certification, an irrevocable consent that service of process on the applicant may be made by delivery of the process to the secretary of state if, in an action against the applicant in a court of this state arising out of the applicant's activities as a nonresident temporary state-licensed or state-certified appraiser, the plaintiff cannot effect, in the exercise of due diligence, personal service on the applicant.

B. A nonresident of this state who has complied with subsection A of this section may obtain a nonresident temporary license or certificate as a nonresident temporary state-licensed or state-certified appraiser by conforming to all of the requirements of this chapter relating to state-licensed or state-certified appraisers.

C. A nonresident of this state who is licensed or certified in another state is entitled to nonresident temporary licensure or certification by the deputy director, which is valid until the completion of each appraisal assignment but not for a period of more than one year after the date of issuance, if:

1. The nonresident appraiser's business in this state is of a temporary nature.

2. The nonresident appraiser applies with the deputy director on forms prescribed by the deputy director.

3. The nonresident appraiser pays the nonresident temporary licensure or certification fee required by the deputy director.

D. The deputy director shall adopt rules in furtherance of this section to avoid the abuse of the temporary practice rights in this state.

§ 32-3618 Reciprocity

Reciprocity shall be granted to an appraiser if all of the following conditions apply:

1. The appraiser holds a credential from a state that is in compliance with 12 United States Code sections 3310, 3332, 3333, 3335, 3338, 3339, 3341, 3342, 3345, 3346, 3347, 3348, 3350, 3351, 3353, 3354 and 3355.

2. The credential requirements for the state described in paragraph 1 of this section meet or exceed those of this state.

3. The appraiser has completed an application for licensure or certification on a form as prescribed by the deputy director and submitted the fees prescribed pursuant to section 32-3607.

§ 32-3619 Renewal of license or certificate; fees

A. Except as otherwise provided in this section and in section 32-4301, to renew a registration certificate as a registered trainee appraiser or a license or certificate as a state-licensed or state-certified appraiser, the holder of a current, valid license or certificate shall apply and pay the prescribed fee to the deputy director not earlier than ninety days before the license or certificate expires. With the application for renewal, the registered trainee appraiser or the state-licensed or state-certified appraiser shall present evidence in the form prescribed by the deputy director of having completed the continuing education requirements for renewal specified in section 32-3625.

B. The deputy director may accept a renewal application after the expiration date and within ninety days of the date of expiration but shall assess a delinquent renewal fee in addition to the renewal fee.

C. An appraiser or registered trainee appraiser who fails to seek renewal within the time period specified in subsection A or B of this section must reapply for licensure or certification and meet all of the requirements of this chapter.

D. An appraiser or registered trainee appraiser shall not engage in, advertise or purport to engage in real estate appraisal activity in this state after a license or certificate has expired and before the renewal of the expired license or certificate except as provided in section 41-1092.11.

§ 32-3620 Basis for denial of a license or certificate

A. The deputy director may deny the initial issuance or renewal of a license or certificate as a registered trainee appraiser, a supervisory appraiser or a state-licensed or state-certified appraiser to an applicant who has been convicted of a felony or on any of the grounds prescribed in this chapter.

B. To assist in determining whether grounds exist to deny the initial issuance or renewal of a license or certificate to an applicant, the deputy director shall require the applicant to apply for a valid fingerprint clearance card issued pursuant to section 41-1758.03.

C. A person who is denied the issuance of a license or certificate may request, and if requested shall receive, a hearing in accordance with title 41, chapter 6, article 10.

§ 32-3621 Addresses; telephone numbers; email addresses; notification of change

A. Each registered trainee appraiser or state-licensed or state-certified appraiser shall advise the deputy director of the address of the person's principal place of business and all other addresses at which the person is currently engaged in the business of preparing real property appraisal reports.

B. Every registered trainee appraiser or state-licensed or state-certified appraiser shall notify the deputy director of the person's current residence address. Residence addresses on file with the deputy director are exempt from disclosure as public records.

C. Every registered trainee appraiser or state-licensed or state-certified appraiser shall provide the person's email address if one exists and a daytime telephone number to the deputy director.

D. If a registered trainee appraiser or a state-licensed or state-certified appraiser changes the person's place of business or residence, email address or daytime telephone number, the person shall give the deputy director written notification of the change within ten days after the change.

§ 32-3622 Licenses and certificates

A. A license or certificate issued under this chapter shall be signed on behalf of the deputy director and shall bear the license or certificate number assigned by the deputy director.

B. Each state-licensed or state-certified appraiser shall place the appraiser's license or certificate number adjacent to or immediately below the title "state-licensed appraiser" or "state-certified appraiser", and the number shall be included in an appraisal report or in a contract or other instrument used by the license or certificate holder in conducting appraisal activities.

§ 32-3623 Use of term

A. The term "state-licensed appraiser" or "state-certified appraiser" may only be used to refer to individuals who hold the license or certificate and may not be used after or immediately in connection with the name or signature of a firm, partnership, corporation or group or in such a manner that it might be interpreted as referring to a firm, partnership, corporation or group or anyone other than the individual holder of the license or certificate.

B. A license or certificate shall not be issued under this chapter to a corporation, partnership, firm or group. This subsection shall not be construed to prevent a state-licensed or state-certified appraiser from signing an appraisal report on behalf of a corporation, partnership, firm or group.

§ 32-3624 Professional corporations and partnerships; appraisal assistance

A corporation, partnership or other business entity may provide appraisal services in connection with transactions related to this chapter if the appraisal is prepared by individuals who are licensed or certified in accordance with this chapter. An individual who is not a state-licensed or state-certified appraiser may provide clerical or administrative assistance in the preparation of an appraisal document. An individual who is a registered trainee appraiser may be involved in developing and reporting the appraisal if both of the following apply:

1. The registered trainee appraiser is under the direct supervision of a state-licensed or state-certified appraiser as prescribed in section 32-3612, paragraph 4.

2. The final appraisal document is approved and the certification is signed by an individual who is a state-licensed or state-certified appraiser.

§ 32-3625 Continuing education

A. As a prerequisite to renewal of a license or certificate, a state registered trainee appraiser or a state-licensed or state-certified appraiser shall present evidence satisfactory to the deputy director of having met the continuing education requirements of either subsection B or C of this section.

B. The basic continuing education requirement for renewal of a license or certificate is the completion by the applicant, during the immediately preceding term of the license or certificate, of courses or seminars that are approved by the deputy director.

C. An applicant for reregistering, relicensing or recertification may satisfy all or part of the continuing education requirements by presenting evidence of the following, which shall be approved by the deputy director:

1. Completion of an education program of study determined by the deputy director to be equivalent, for continuing education purposes, to courses approved by the deputy director pursuant to subsection B of this section.

2. Participation other than as a student in educational processes and programs that are approved by the deputy director and that relate to appropriate appraisal theory, practices or techniques, including teaching, program development and preparation of textbooks, monographs, articles and other instructional materials, not to exceed fifty percent of an applicant's continuing education requirements and not for the same course in consecutive renewal periods.

D. The deputy director shall adopt rules to ensure that a person who renews the person's license or certificate as a state-licensed or state-certified appraiser follows practices and techniques that provide a high degree of service and protection to members of the public with whom the person deals in the professional relationship under the authority of the license or certificate. The rules shall include the following:

1. Policies and procedures for obtaining the deputy director's approval of courses and instruction pursuant to subsection B of this section.

2. Standards, policies and procedures to be applied by the deputy director in evaluating an applicant's claims of equivalency in accordance with subsection C of this section.

3. Standards, monitoring methods and systems for recording attendance to be employed by course sponsors as a prerequisite to the deputy director's approval of courses for credit.

E. In adopting rules pursuant to subsection D, paragraph 1 of this section, the deputy director shall consider courses of instruction, seminars and other appropriate appraisal educational courses or programs previously or hereafter developed by or under the auspices of professional appraisal organizations and used by those associations for purposes of designation or indicating compliance with the continuing education requirements of such organizations. A person who offers these courses may not discriminate in the opportunity to participate in these courses on the basis of membership or nonmembership in an appraisal organization.

F. An amendment or repeal of a rule adopted by the deputy director pursuant to this section may not deprive a state registered trainee appraiser or a state-licensed or state-certified appraiser of credit toward renewal of a license or certificate for any course of instruction that the applicant either completed or enrolled in before the amendment or repeal of the rule that would have qualified for continuing education credit as the rule existed before the repeal or amendment.

G. A license or certificate as a registered trainee appraiser or a state-licensed or state-certified appraiser that has been suspended as a result of disciplinary action by the deputy director shall not be reinstated unless the applicant presents evidence of completion of the continuing education required by this chapter.

H. A license or certificate that has been revoked by the deputy director shall not be reinstated unless the applicant successfully completes the appropriate requirements of the appraisal qualifications board, including education and passage of the current national examination.

§ 32-3627 Inactive license or certificate status; reactivation application; renewal application and fee; continuing education

A. Any license or certificate holder may request that the license or certificate be placed on inactive status by filing with the deputy director an application that includes all of the following:

1. The license or certificate holder's name.

2. The license or certificate number.

3. A request for inactive status.

B. The period a license or certificate is on inactive status under this section may not exceed two years.

C. A license or certificate holder who is on inactive status shall not do either of the following:

1. Represent that the license or certificate holder is an active appraiser licensed or certified in this state.

2. Perform real estate appraisals or appraisal reviews on real estate in this state.

D. A license or certificate holder who is on inactive status under this section must file with the deputy director an application for reactivation of the license or certificate before resuming real estate appraisal activity.

E. To return to active status, the inactive license or certificate holder shall do both of the following:

1. File with the deputy director an application for reactivation of the license or certificate.

2. Provide evidence of completion of the required continuing education that the license or certificate holder would have been required to meet during the period when the license or certificate holder's license or certificate was on inactive status.

F. If the holder of an inactive license or certificate under this section does not file an application for reactivation within a two-year period, that person must reapply for licensure or certification pursuant to the requirements of this chapter.

G. A license or certificate holder who is on inactive status pursuant to this section remains on inactive status until the deputy director approves the application for reactivation of the license or certificate.

H. The deputy director may take disciplinary or remedial action against a license or certificate holder who is on inactive status pursuant to this section.

I. A license or certificate holder who places the holder's license or certificate on inactive status must pay the renewal fee and complete an application for renewal as prescribed in section 32-3619. The license or certificate holder on inactive status is not required to provide evidence of completion of the continuing education requirements until the application for reactivation is filed pursuant to subsection E of this section.

§ 32-3628 Inactive license or certificate status during military duty; reactivation application; renewal application and fee; continuing education

A. A license or certificate holder who is ordered to active military duty with the United States armed forces may request that the license or certificate be placed on inactive status by filing with the deputy director an application that includes all of the following:

1. The license or certificate holder's name.

2. The license or certificate number.

3. The date that the active military duty begins.

4. A request for inactive status.

B. The license or certificate is deemed to be on inactive status while the license or certificate holder is on active military duty, but the period of inactive status may not exceed three years.

C. A license or certificate holder who is on inactive status pursuant to this section shall not do either of the following:

1. Represent that the holder is an active appraiser licensed or certified in this state.

2. Perform real estate appraisals or appraisal reviews on real estate in this state.

D. A license or certificate holder who is on inactive status must file with the deputy director an application for reactivation of the license or certificate within one hundred eighty days after returning home from active military duty.

E. If the holder of an inactive license or certificate timely files an application for reactivation of the license or certificate, the license or certificate is returned to active status on the deputy director's approval of the application for reactivation. The license or certificate holder shall complete the continuing education requirements that would otherwise have been required when the license or certificate was on inactive status within ninety days after the person's return from active military duty. The license or certificate holder must submit proof of completion of any continuing education requirements to the deputy director not later than one hundred twenty days after completion.

F. If the holder of an inactive license or certificate under this section does not timely apply for reactivation as required by subsection D of this section, the holder must reapply for licensure or certification meeting all of the requirements of this chapter.

G. A license or certificate holder who is on inactive status pursuant to this section remains on inactive status until the deputy director approves the application for reactivation of the license or certificate.

H. The holder of an inactive license or certificate applying for reactivation of the license or certificate under this section shall include with the application for reactivation a copy of the documentation from the armed forces showing the period of time that the holder of the inactive license or certificate was on active military duty.

I. Any license or certificate holder who places the holder's license or certificate on inactive status under this section must pay the renewal fee prescribed in section 32-3607 and complete an application for renewal pursuant to section 32-3619. A license or certificate holder on inactive status pursuant to this section who files an application for reactivation shall provide evidence of completion of the continuing education requirements pursuant to subsection E of this section.

J. For the purposes of this section, active military duty does not include service persons performing weekend drill and annual training.

Article 3 Regulation

§ 32-3631 Disciplinary proceedings; civil penalties

A. The rights of an applicant or holder under a license or certificate as a registered trainee appraiser or a state-licensed or state-certified appraiser may be revoked or suspended, or the holder of the license or certificate may otherwise be disciplined, including being placed on probation as prescribed by rule, in accordance with this chapter on any of the grounds set forth in this section. The deputy director may investigate the actions of a registered trainee appraiser or a state-licensed or state-certified appraiser in this state or in any other state and may revoke or suspend the rights of a license or certificate holder or otherwise discipline a registered trainee appraiser or a state-licensed or state-certified appraiser for any of the following acts or omissions:

1. Procuring or attempting to procure a license or certificate pursuant to this chapter by knowingly making a false statement, submitting false information, refusing to provide complete information in response to a question in an application for a license or certificate or committing any form of fraud or misrepresentation.

2. Failing to meet the minimum qualifications established by this chapter.

3. Paying or offering to pay money or other considerations other than as provided by this chapter to any member or employee of the department to procure a license or certificate under this chapter.

4. Being convicted, including based on a plea of guilty, of a crime that is substantially related to the qualifications, functions and duties of a person developing appraisals and communicating appraisals to others, or being convicted of any felony or any crime involving moral turpitude.

5. Committing an act or omission involving dishonesty, fraud or misrepresentation with the intent to substantially benefit the license or certificate holder or another person or with the intent to substantially injure another person.

6. Violating any of the standards of the development or communication of appraisals as provided in this chapter.

7. Being negligent or incompetent as a state-licensed or state-certified appraiser in developing an appraisal, in preparing an appraisal report or in communicating an appraisal.

8. Wilfully disregarding or violating any provisions of this chapter or an order or rule of the deputy director for the administration and enforcement of this chapter.

9. Accepting an appraisal assignment if the employment itself is contingent on the appraiser reporting a predetermined estimate, analysis or opinion or if the fee to be paid is contingent on the opinion, conclusion or value reached or on the consequences resulting from the appraisal assignment.

10. Violating the confidential nature of any records to which the registered trainee appraiser or the state-licensed or state-certified appraiser gains access through employment or engagement as a registered trainee appraiser or an appraiser.

11. Having a final civil judgment entered against the person on grounds of fraud, misrepresentation or deceit in the making of any appraisal.

B. In a disciplinary proceeding based on a civil judgment, a registered trainee appraiser or state-licensed or state-certified appraiser may present matters in mitigation and extenuation.

C. The deputy director may issue subpoenas for the attendance of witnesses and the production of books, records, documents and other evidence necessary and relevant to an investigation or hearing.

D. The lapsing or suspension of a license or certificate by operation of law or by an order or decision of the deputy director or a court of law, or the voluntary surrender of a license or certificate by a license or certificate holder, shall not deprive the deputy director of jurisdiction to do either of the following within twenty-four months after the expiration of the license or certificate pursuant to section 32-3616:

1. Proceed with any investigation of or action or disciplinary proceeding against the license or certificate holder.

2. Render a decision suspending or revoking the license or certificate or denying the renewal or right of renewal of the license or certificate.

E. If the deputy director determines that a state-licensed or state-certified appraiser is in violation of this chapter, the deputy director may take disciplinary or remedial action and may impose a civil penalty not to exceed $3,000 per complaint filed with the deputy director pursuant to this chapter. All civil penalties collected pursuant to this subsection shall be deposited in the department revolving fund established by section 6-135.

§ 32-3632 Hearing and judicial review; costs and fees; appeal

A. The hearing on the charges shall be at a time and place prescribed by the deputy director and shall be in accordance with title 41, chapter 6, article 10.

B. If a case proceeds to a hearing before either the deputy director or an administrative law judge, both of the following apply:

1. If the department sustains its burden of proof and prevails on the merits of the case, the department may collect from the respondent applicant, registered trainee appraiser, appraiser or property tax agent the department's costs and expenses associated with the formal hearing, including reasonable attorney fees, expert testimony and preparation fees, investigative costs and expenses and costs incurred relating to the office of administrative hearings and court reporters. All monies collected pursuant to this paragraph shall be deposited in the department revolving fund established by section 6-135.

2. If the department does not sustain its burden of proof and the respondent applicant, registered trainee appraiser, appraiser or property tax agent prevails on the merits of the case, the respondent applicant, registered trainee appraiser, appraiser or property tax agent may collect from the department fees and other costs associated with the formal hearing.

C. Except as provided in section 41-1092.08, subsection H, any final decision or order of the deputy director may be appealed to the superior court pursuant to title 12, chapter 7, article 6.

§ 32-3633 Undue influence; classification

A person who induces or influences the actions of an appraiser for purposes of securing an appraisal that is grossly misleading, or fraudulent, is guilty of a class 6 felony.

§ 32-3634 Prohibition against discrimination

If appraisal users require specific appraiser qualifications or experience for certain transactions necessary to carry out or to meet the responsibilities of the appraisal user, these requirements shall be related to the special skills that are required of an individual in connection with the specific appraisal assignment and shall not exclude an appraiser for consideration for such assignment solely by membership or lack of membership in any particular professional appraisal organization or association.

§ 32-3635 Standards of practice; unprofessional conduct

A. A registered trainee appraiser or a state-licensed or state-certified appraiser shall comply with the standards of professional appraisal practice.

B. An appraisal or appraisal report shall not be issued by a real estate appraiser unless it meets the appraisal standards established by this chapter and rules adopted pursuant to this chapter.

C. An appraisal review report shall clearly indicate the nature of the review process undertaken and shall separate the review function from any other functions.

D. All federally related appraisals shall be in writing.

E. Failure to pay the fees and expenses authorized by section 32-3632, subsection B is unprofessional conduct as defined by the uniform standards of professional appraisal practice.

§ 32-3636 Contingent fees

A state-licensed or state-certified appraiser may not accept a fee for an appraisal assignment that is contingent on the appraiser reporting a predetermined estimate, analysis or opinion or that is contingent on the opinion, conclusion or value reached or on the consequences resulting from the appraisal assignment.

§ 32-3637 Retention of records; definition

A. A state-licensed or state-certified appraiser shall retain a work file for at least five years after preparation of the work file or at least two years after final disposition of any judicial proceeding in which the appraiser provided testimony related to the work file, whichever period of time is greater.

B. A state-licensed or state-certified appraiser shall do either of the following:

1. Have custody of the appraiser's work file.

2. Make appropriate work file retention, access and retrieval arrangements with the party having custody of the work file.

C. The deputy director may inspect all records required to be maintained under this chapter by the state-licensed or state-certified appraiser on reasonable notice to the appraiser.

D. For the purposes of this section, "work file" includes documentation that is necessary to support an appraiser's analyses, opinions and conclusions and that demonstrates compliance with the uniform standards of professional appraisal practice.

§ 32-3638 Violation; classification

Any person who performs a real estate appraisal or appraisal review, who is not licensed or certified under this chapter and who knowingly assumes or uses any title, designation or abbreviation likely to create the impression of licensure or certification by this state or any person who knowingly provides false or fraudulent information to the deputy director is guilty of a class 1 misdemeanor.

§ 32-3639 Damages; injunctive relief

If the deputy director has a reasonable basis to believe, after investigation, that any person is violating any provision of this chapter, the deputy director may bring an action in superior court for appropriate injunctive or other equitable relief, damages sustained and taxable costs and reasonable attorney fees.

§ 32-3640 Prohibition; indemnification agreement

A. Any person, party or entity who hires, engages or communicates with an appraiser directly or through an agent shall not require or attempt to require the appraiser to sign any indemnification agreement that would hold harmless the hiring person, party or entity, its owners, agent's employees or independent contractors from any liability, damage, loss or claim arising from the services performed by the person, party or entity, its owners, agent's employees or independent contractors.

B. This section does not limit liability for services performed by the appraiser.

Article 4 Property Tax Agents

§ 32-3651 Definitions

In this article, unless the context otherwise requires:

1. "Analysis" means the review of a property valuation or legal classification established by a county assessor in the representation of a person in appealing the property valuation or legal classification to the county assessor.

2. "Appraisal" means the development of real or personal property valuation or legal classification opinions or conclusions.

3. "Property tax agent" means an individual who is designated by a person or is an employee of an entity designated as an agent pursuant to section 42-16001, who acts on behalf of a person who owns, controls or possesses property valued by a county assessor or the department of revenue and who receives a fee for the analysis of any matter relating to the review of the valuation or legal classification of the person's property before the assessor, the county or state board of equalization or the department of revenue. Property tax agent does not include a person who is admitted to practice law in this state, an employee of the person owning, controlling or possessing the property or an employee of an entity designated pursuant to section 42-16001, if such employee is performing a secretarial, clerical or administrative support function.

§ 32-3652 Registration; renewal; fees

A. An individual who wishes to act as a property tax agent shall apply for registration by submitting to the deputy director a completed application form prescribed by the deputy director with the initial registration fee. The applicant shall also file with the deputy director an affidavit stating whether the applicant has been convicted of a felony or any misdemeanor involving dishonesty or moral turpitude in this or any other state within the last ten years. The deputy director may review the affidavit and issue or deny the registration based on its findings.

B. Except as provided in section 32-4301, registration is valid for two years. An individual may renew a registration by submitting to the deputy director a renewal form prescribed by the deputy director with the renewal fee on or before the date the registration expires.

C. An appraiser who is licensed or certified pursuant to this chapter may register and renew registration as a property tax agent without paying the fee prescribed by this section.

D. The deputy director shall issue a certificate of registration to an individual if the individual complies with this section and is not prohibited from registering pursuant to section 32-3654.

E. A person shall not act as a property tax agent if the person is not registered pursuant to this section.

F. The deputy director shall collect from each individual a fee of:

1. $200 for an initial registration.

2. $100 for a renewal.

§ 32-3653 Property tax agent conduct

A property tax agent:

1. Shall not knowingly misrepresent any information or act in a fraudulent manner.

2. Shall not prepare documents or provide evidence in a property valuation or legal classification appeal unless the agent is authorized by the property owner to do so and any required agency authorization form has been filed.

3. Shall not knowingly submit false or erroneous information in a property valuation or legal classification appeal.

4. Shall use appraisal standards and methods that are adopted by the deputy director when the agent submits appraisal information in a property valuation or legal classification appeal.

§ 32-3654 Disciplinary actions

A. On the complaint of any person or on the deputy director's own motion, the deputy director shall investigate any suspected violation of this article by a property tax agent. If the deputy director finds a violation, the deputy director may issue a letter of concern.

B. If the deputy director finds that the property tax agent committed any of the following violations, the deputy director shall revoke or suspend the agent's registration:

1. Secured registration by fraud or deceit.

2. Committed an act or is responsible for an omission involving fraud or knowing misrepresentation with the intent to obtain a benefit.

3. Knowingly violated section 32-3653.

C. The deputy director shall:

1. Suspend the agent's registration for not less than six months on the first finding of a violation pursuant to subsection B of this section.

2. Suspend the agent's registration for not less than twelve months on the second finding of a violation pursuant to subsection B of this section.

3. Revoke the agent's registration on a third or subsequent finding of a violation pursuant to subsection B of this section.

D. The deputy director shall not impose discipline until the agent has been provided an opportunity for a hearing pursuant to title 41, chapter 6, article 10. The deputy director shall notify the agent of the charges and the date and time of the hearing. The notice may be personally served or sent by certified mail to the agent's last known address. Except as provided in section 41-1092.08, subsection H, the final decision of the deputy director is subject to judicial review pursuant to title 12, chapter 7, article 6.

E. The deputy director shall not renew an agent's registration during the time the registration is suspended or revoked.

§ 32-3655 Rules

The deputy director may adopt rules for the purpose of administering this article.

§ 32-3656 Confidential records

Except as otherwise provided by law, all documents associated with a complaint pursuant to this article are confidential until the complaint is resolved.

Article 5 Appraisal Management Companies

§ 32-3661 Definitions

In this article, unless the context otherwise requires:

1. "Appraisal" means the act or process of developing an opinion of the value of real property in conformance with the uniform standards of professional appraisal practice published by the appraisal foundation, or any other definition used in state or federal laws.

2. "Appraisal management company" means a corporation, partnership, sole proprietorship, subsidiary or other business entity that directly or indirectly performs appraisal management services, regardless of the use of the term "appraisal management company", "mortgage technology provider", "lender processing services", "lender services", "loan processor", "mortgage services", "real estate closing services provider", "settlement services provider" or "vendor management company" or any other term, and that does any of the following:

(a) Administers an appraiser panel of at least sixteen state-licensed or state-certified appraisers in one state who are independent contractors or at least twenty-five state-licensed or state-certified appraisers in at least two states who perform real property appraisal services in this state for clients.

(b) Otherwise serves as a third-party liaison of appraisal management services between clients and appraisers.

3. "Appraisal management services" means any of the following:

(a) Recruiting, selecting and retaining appraisers.

(b) Contracting with state-licensed or state-certified appraisers to perform appraisal agreements.

(c) Managing the process of having an appraisal performed, including providing administrative services such as receiving appraisal orders and appraisal reports, submitting completed appraisal reports to creditors and secondary market participants, collecting fees from creditors and secondary market participants for services provided and paying appraisers for services performed.

(d) Reviewing and verifying the work of appraisers.

4. "Appraisal review" means the act or process of developing and communicating an opinion about the quality of another appraiser's work that was performed as part of an appraisal assignment, but does not include an examination of an appraisal for grammatical, typographical or other similar errors that do not communicate an opinion related to the appraiser's data collection, analysis, opinions, conclusions, estimate of value or compliance with the uniform standards of professional appraisal practice.

5. "Appraiser" means a person who is licensed or certified as an appraiser pursuant to this chapter and who performs valuation services competently and in a manner that is independent, impartial and objective.

6. "Appraiser panel":

(a) Means a network, list or roster of state-licensed or state-certified appraisers approved by an appraisal management company to perform appraisals as independent contractors for the appraisal management company. For the purposes of this subdivision, an appraiser is an independent contractor if the appraiser management company treats the appraiser as an independent contractor for federal income tax purposes.

(b) Includes both appraisers accepted by the appraisal management company for consideration for future appraisal assignments in covered transactions or for secondary mortgage market participants in connection with covered transactions and appraisers engaged by the appraisal management company to perform one or more appraisals in covered transactions.

7. "Client" means a person that contracts with, or otherwise enters into an agreement with, an appraisal management company for the performance of real property appraisal services.

8. "Controlling person" means any of the following:

(a) An owner, officer or director of a corporation, partnership or other business entity seeking to offer appraisal management services in this state.

(b) An individual who is employed, appointed or authorized by an appraisal management company and who has the authority to enter into a contractual relationship with clients for the performance of appraisal management services and to enter into agreements with independent appraisers for the performance of real property appraisal services.

(c) An individual who possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of an appraisal management company.

9. "Federally regulated appraisal management company" means an appraisal management company that is a subsidiary owned and controlled by an insured depository institution or an insured credit union and regulated by a federal financial institutions regulatory agency.

10. "Real property appraisal services" means the practice of developing an opinion of the value of real property in conformance with the uniform standards of professional appraisal practice published by the appraisal foundation.

11. "Relocation management company" means a business entity whose exclusive business services are not for mortgage purposes and include the relocation of employees as an agent or contractor for the employer or the employer's agent for the purposes of determining an anticipated sales price, as defined by the worldwide employee relocation council, of the residence of an employee being relocated by the employer in the course of its business.

12. "Uniform standards of professional appraisal practice" means the uniform standards of professional appraisal practice promulgated by the appraisal foundation.

§ 32-3662 Registration

A. A person shall not directly or indirectly engage or attempt to engage in business as an appraisal management company, directly or indirectly perform or attempt to perform appraisal management services or advertise or hold itself out as engaging in or conducting business as an appraisal management company without first obtaining a registration issued by the deputy director pursuant to this article, regardless of the entity's use of the term "appraisal management company" or "mortgage technology company" or any other name.

B. A person who wishes to be registered as an appraisal management company in this state must file a written application with the deputy director on a form prepared and furnished by the deputy director and pay a fee in an amount to be determined by the deputy director. The registration required by subsection A of this section shall include:

1. The name, residence address, business address and telephone number of the applicant and the location of each principal office and branch office at which the appraisal management company will conduct business in this state.

2. The name under which the applicant will conduct business as an appraisal management company.

3. The name, residence address, business address and telephone number of each person who will have at least a ten percent ownership interest in the appraisal management company as a principal, partner, officer, director or trustee, specifying the capacity and title of each person.

4. If the person seeking registration is a corporation that is not domiciled in this state, the name and contact information for the company's agent for service of process in this state.

5. A certification that the person seeking registration has a system and process in place to verify that a person being added to the appraiser panel for the appraisal management company's appraisal management services in this state holds a license or certification in good standing in this state.

6. A certification that the person seeking registration has a system in place to review the work of all independent appraisers that are performing real property appraisal services for the appraisal management company on a periodic basis to confirm that the real property appraisal services are being conducted in accordance with uniform standards of professional appraisal practice.

7. A certification that the person maintains a detailed record of each service request that it receives and the independent appraiser that performs the real property appraisal services for the appraisal management company.

8. A certification that the person seeking registration has a system in place to train those who select individual appraisers for real property appraisal services in this state to ensure that the selectors have appropriate training in placing appraisal assignments.

9. An irrevocable consent to service of process.

10. A certification that allows the deputy director to examine the books and records of the appraisal management company and a written agreement that requires the appraisal management company to submit reports, information and documents to the deputy director as required by rule.

11. Any other information required by the deputy director deemed reasonable in scope and content and necessary for the implementation and administration of this chapter.

C. The deputy director may deny the application for an initial issuance or renewal of an appraisal management company registration if the applicant has been convicted of a felony or as otherwise prescribed by this chapter.

§ 32-3663 Exemptions

This article does not apply to:

1. A department or unit within a financial institution that is subject to direct regulation by an agency of the United States government or of this state and that receives requests for the performance of real estate appraisals from the financial institution and then assigns such requests to an appraiser who is part of the financial institution's appraiser panel.

2. A federally regulated appraisal management company.

3. A corporation, partnership, sole proprietorship, subsidiary or other business entity that employs real estate appraisers exclusively on an employer and employee basis for the performance of all real property appraisal services in the normal course of its business and that is responsible for ensuring that the real property appraisal services being performed by its employees are being performed in accordance with the uniform standards of professional appraisal practice and federal and state law.

4. A relocation management company in the course of employee relocation pursuant to its relocation policy.

§ 32-3664 Registration forms

An applicant for initial and renewal registration as an appraisal management company shall submit to the deputy director an application on a form prescribed by the deputy director.

§ 32-3665 Expiration of registration

An initial registration granted by the department pursuant to this article is valid for one year after the date on which it is issued. Registration renewals are valid for two years.

§ 32-3666 Consent to service of process

Each entity applying for registration as an appraisal management company shall complete and execute an irrevocable consent to service of process form as prescribed by the deputy director.

§ 32-3667 Fee; bond

A. The deputy director shall establish the fee for appraisal management company registration by rule.

B. The appraisal management company shall show proof of a surety bond of at least $20,000 but not more than $50,000.

§ 32-3668 Owner requirements

A. An appraisal management company applying for registration may not be owned by a person or have any principal of the company who has had any financial, real estate or mortgage lending industry license or certificate refused, denied, canceled, revoked or voluntarily surrendered in this state or in any other state. This requirement may be waived at the discretion of the deputy director.

B. Each person that owns, is an officer of or has a financial interest in an appraisal management company in this state shall:

1. Apply for a valid fingerprint clearance card issued pursuant to section 41-1758.03.

2. Certify to the deputy director that the person has never had any financial, real estate or mortgage lending industry license or certificate refused, denied, canceled, revoked or voluntarily surrendered in this state or in any other state. This requirement may be waived by appeal and at the discretion of the deputy director.

§ 32-3669 Controlling person requirements

A. Each appraisal management company applying to the deputy director for registration in this state shall designate one controlling person who will be the main contact for all communication between the deputy director and the appraisal management company.

B. To serve as a controlling person of an appraisal management company, a person shall:

1. Certify to the deputy director that the person has never had any financial, real estate or mortgage lending industry license or certificate issued by this state, or any other state, refused, denied, canceled, revoked or voluntarily surrendered. This requirement may be waived by appeal and at the discretion of the deputy director.

2. Apply for a valid fingerprint clearance card issued pursuant to section 41-1758.03.

§ 32-3670 Employee requirements

Any employee of an appraisal management company, or any person working on behalf of an appraisal management company, who has the responsibility of selecting independent appraisers for the performance of real property appraisal services for the appraisal management company or providing appraisal review services on a completed appraisal, shall be appropriately trained and qualified in compliance with this chapter.

§ 32-3671 Agreements with independent appraisers; limitations

An appraisal management company registered in this state pursuant to this article may not enter into contracts or agreements with an independent appraiser for the performance of real property appraisal services in this state unless that person is licensed or certified in good standing with the deputy director.

§ 32-3672 Certification on registration renewal

Each appraisal management company seeking registration renewal in this state shall certify to the deputy director on a form prescribed by the deputy director that the appraisal management company has complied with all of the following:

1. Has a system and process in place to verify that a person being added to the appraiser panel of the appraisal management company holds a license or certificate in good standing in this state pursuant to the deputy director.

2. Has a system in place to review the quality of appraisals of all independent appraisers that are performing real property appraisal services for the appraisal management company on a periodic basis to confirm that the real property appraisal services are being conducted in accordance with uniform standards of professional appraisal practice.

3. Maintains a detailed record of each service request that it receives and the name of the independent appraiser that performs the real property appraisal services for the appraisal management company. The appraisal management company shall maintain a detailed record for the same time period that an appraiser is required to maintain an appraisal record for the same real property appraisal activity.

4. Has a system in place to train those who select individual appraisers for real property appraisal services in this state to ensure that the selectors have appropriate training in placing appraisal assignments.

§ 32-3673 Disclosure of fees

A. The appraisal management company shall not prohibit the appraiser from reporting in the appraisal report the fee paid to the appraiser.

B. The appraiser shall disclose the fee paid for an appraisal report ordered by an appraisal management company in the scope of work section in the appraisal report.

§ 32-3674 Appraiser independence; prohibitions

A. Any employee, director, officer or agent of an appraisal management company registered pursuant to this article shall not influence or attempt to influence the development, reporting or review of an appraisal through coercion, extortion, collusion, compensation, inducement, intimidation, bribery or any other manner, including:

1. Withholding or threatening to withhold timely payment for an appraisal.

2. Withholding or threatening to withhold future business for an independent appraiser or demoting or terminating, or threatening to demote or terminate, an independent appraiser.

3. Expressly or impliedly promising future business, promotions or increased compensation for an independent appraiser.

4. Conditioning the request for an appraisal service or the payment of an appraisal fee or salary or bonus on the opinion, conclusion or valuation to be reached or on a preliminary estimate or opinion requested from an independent appraiser.

5. Requesting that an independent appraiser provide an estimated, predetermined or desired valuation in an appraisal report or provide estimated values or comparable sales at any time before the independent appraiser's completion of an appraisal service.

6. Providing to an independent appraiser an anticipated, estimated, encouraged or desired value for a subject property or a proposed or target amount to be loaned to the borrower, except that a copy of the sales contract for purchase transactions may be provided.

7. Providing to an independent appraiser, or any entity or person related to the appraiser, stock or other financial or nonfinancial benefits.

8. Allowing the removal of an independent appraiser from an appraiser panel, without prior written notice to the appraiser.

9. Obtaining, using or paying for a second or subsequent appraisal or ordering an automated valuation model in connection with a mortgage financing transaction, unless there is a reasonable basis to believe that the initial appraisal was flawed or tainted and the basis is clearly and appropriately noted in the loan file or unless the appraisal or automated valuation model is done pursuant to a bona fide prefunding or postfunding appraisal review or quality control process.

10. Engaging in any other act or practice that impairs or attempts to impair an appraiser's independence, objectivity or impartiality.

B. An appraisal fee offered or paid may not be based on the predetermined value or range of value of the subject property or the amount of the transaction price.

C. Subsections A and B do not prohibit an appraisal management company from requesting that an independent appraiser either:

1. Provide additional information about the basis for a valuation.

2. Correct objective factual errors in an appraisal report.

§ 32-3675 Payment

Except in cases of breach of contract or substandard performance of services, each appraisal management company shall make payment to an independent appraiser for the completion of an appraisal or valuation assignment within forty-five days after the date on which the independent appraiser transmits or otherwise provides the completed appraisal or valuation study to the appraisal management company or its assignee.

§ 32-3676 Appraisal reports; alteration; use

An appraisal management company shall not:

1. Alter, modify, revise or otherwise change a completed appraisal report submitted by an independent appraiser, including removing the signature of the appraiser.

2. Use an appraisal report submitted by an independent appraiser for any purpose other than the intended use stated in the report.

§ 32-3677 Review of disputes

A. An appraisal management company shall not remove an appraiser from its appraiser panel, or otherwise refuse to assign requests for real property appraisal services to an independent appraiser, without notifying the appraiser in writing of the reasons for the appraiser being removed from the appraiser panel of the appraisal management company.

B. An independent appraiser that is removed from the appraiser panel of an appraisal management company for alleged illegal conduct, a violation of the uniform standards of professional appraisal practice or a violation of state licensing standards may file a complaint with the deputy director for a review of the decision of the appraisal management company, except that the deputy director may not make any determination regarding the nature of the business relationship between the appraiser and the appraisal management company that is unrelated to the actions specified in subsection A of this section.

C. If an independent appraiser files a complaint against an appraisal management company pursuant to subsection B of this section, the deputy director shall investigate the complaint within a reasonable time.

D. If the deputy director determines that an independent appraiser did not commit a violation of law, a violation of the uniform standards of professional appraisal practice or a violation of state licensing standards:

1. The deputy director shall order that the appraiser be added to the appraiser panel of the appraisal management company that was the subject of the complaint without prejudice.

2. The appraisal management company may request a hearing pursuant to title 41, chapter 6, article 10.

§ 32-3678 Censure, suspension or revocation; civil penalty

The deputy director may censure an appraisal management company, conditionally or unconditionally suspend or revoke any registration issued under this article or impose civil penalties not to exceed $15,000 per violation if, in the opinion of the deputy director, an appraisal management company is attempting to perform, has performed or has attempted to perform any of the following acts:

1. Committing any act in violation of this article.

2. Violating any rule adopted by the deputy director in the interest of the public and consistent with this article.

3. Knowingly making or causing to be made to the deputy director any false representation of material fact.

4. Suppressing or withholding from the deputy director any information that the appraisal management company possesses and that, if submitted by the appraisal management company, would have rendered the appraisal management company ineligible to be registered pursuant to rules adopted by the deputy director.

5. Violating the federal financial institutions reform, recovery and enforcement act of 1989 (P.L. 101-73; 103 Stat. 183).

§ 32-3679 Disciplinary hearings

A. The deputy director or an administrative law judge may conduct disciplinary proceedings in accordance with title 41, chapter 6, article 10.

B. Before censuring any registrant, or suspending or revoking any registration, the deputy director shall notify the registrant in writing of any charges made at least forty-five days before the date set for the hearing and shall afford the registrant an opportunity to be heard in person or by counsel.

C. The written notice shall be satisfied by personal service on the controlling person of the registrant or the registrant's agent for service of process in this state or by sending the notice by certified mail to the controlling person of the registrant to the registrant's address on file with the deputy director.

D. The hearing shall be at a time and place prescribed by the deputy director. Any reasonable request for a delay of a hearing shall not exceed ninety days.

E. The deputy director may make findings of fact and shall deliver or mail the findings to the registrant charged with a violation of this article.

§ 32-3680 Rulemaking authority

The deputy director shall adopt rules that are reasonably necessary to implement, administer and enforce this article, including rules for obtaining copies of appraisals and other documents necessary to audit compliance with this article and rules requiring a surety bond to be posted with each application.

Chapter 37 Child Support Obligations

Article 1 General Provisions

§ 32-3701 Child support arrearages; suspension of license or certificate; applicability; definition

A. A licensing board or agency shall suspend a license within thirty days after receiving a certificate of noncompliance from the court pursuant to section 25-518. The licensing board or agency shall not lift the suspension until it receives a certificate of compliance from the court.

B. The licensing board or agency shall notify the department of economic security within thirty days in writing, or by any other means prescribed by the department, of all license suspensions pursuant to this section. The information shall include the person's name, address, date of birth and social security number.

C. This section applies to support obligations ordered by any state, territory or district of the United States.

D. For purposes of this section, "license" means any license, certificate, registration, permit or other authorization that:

1. Is issued by an agency or regulatory board.

2. Is subject before expiration to suspension, revocation, forfeiture or termination by the issuing board or agency.

3. A person must obtain to practice or engage in a particular business, occupation or profession.

Chapter 38 Privacy Rights

Article 1 General Provisions

§ 32-3801 Personal information maintained by regulatory entities; confidentiality

Notwithstanding any law to the contrary, except as provided in section 32-3226, a professional's residential address and residential telephone number or numbers maintained by a regulatory entity established pursuant to this title are not available to the public unless they are the only address and numbers of record.

Chapter 39 Acupuncture

Article 1 Acupuncture Board of Examiners

§ 32-3901 Definitions

In this chapter, unless the context otherwise requires:

1. "Acupuncture":

(a) Means a system of medicine based in traditional practices and informed by contemporary science.

(b) Includes the following:

(i) Puncturing the skin by thin, solid needles to reach subcutaneous structures.

(ii) Stimulating the needles to effect a positive therapeutic response.

(iii) Removing needles.

(iv) Using and prescribing adjunctive therapies.

(v) Using and prescribing herbal therapies commensurate with the acupuncturist's education and training.

(vi) Using decision-support tools, including physical and clinical examinations.

(vii) Ordering diagnostic imaging and clinical laboratory procedures to determine the nature of care or to form a basis for referral to other licensed health care professionals, or both.

2. "Acupuncture assistant" means an unlicensed person who has completed a training program approved by the board, who assists in basic health care duties in the practice of acupuncture under the supervision of a licensed acupuncturist and who performs delegated duties commensurate with the acupuncture assistant's education and training, but who does not evaluate, interpret, design or modify established treatment programs of acupuncture care.

3. "Adjunctive therapies" means the manual, mechanical, magnetic, thermal, electrical or electromagnetic stimulation of acupuncture points and energy pathways, auricular and detoxification therapy, the use of ion cord devices, electroacupuncture, nutritional counseling, therapeutic exercise, the use of nonionizing lasers and acupressure.

4. "Board" means the acupuncture board of examiners.

5. "Herbal therapies" means prescribing, administering, injecting, compounding and dispensing herbal medicines and plant, animal, mineral and natural substances.

6. "Supervision" means that the supervising licensed acupuncturist is present in the facility where the acupuncture assistant is performing services and is available for consultation regarding procedures that the licensed acupuncturist has authorized and for which the licensed acupuncturist remains responsible.

7. "Trauma" means the experience of significant psychological distress following any terrible or life-threatening event.

8. "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere:

(a) Wilfully disclosing a professional secret or wilfully violating a privileged communication except as either of these may otherwise be required by law.

(b) Committing a felony as evidenced by conviction by a court of competent jurisdiction.

(c) Being habitually intemperate in the use of alcohol or any substance abuse that interferes with the ability to safely practice acupuncture.

(d) Committing conduct that the board determines is gross malpractice, repeated malpractice or any malpractice resulting in the death of a patient.

(e) Impersonating another acupuncturist or any other practitioner of the healing arts.

(f) Falsely acting or assuming to act as a member, an employee or an authorized agent of the board.

(g) Procuring or attempting to procure a license pursuant to this chapter by fraud or misrepresentation.

(h) Refusing to divulge to the board on demand the acupuncture method used in the treatment of a patient.

(i) Giving or receiving or aiding or abetting the giving or receiving of rebates, either directly or indirectly.

(j) Knowingly making any false or fraudulent statement, written or oral, in connection with the practice of acupuncture.

(k) Having a license refused, revoked or suspended by any other state, district or territory of the United States or any other country, unless the action was not taken for reasons relating to the person's ability to safely and skillfully practice acupuncture or relating to an act of unprofessional conduct.

(l) Committing conduct that is contrary to the recognized standards or ethics of the acupuncture profession or that may constitute a danger to the health, welfare or safety of the patient or the public.

(m) Committing any conduct or having any condition that may impair the ability to safely and skillfully practice acupuncture.

(n) Violating or attempting to violate, directly or indirectly, assisting in or abetting the violation of or conspiring to violate this chapter or board rules.

(o) Advertising in a false, deceptive or misleading manner.

(p) Failing or refusing to maintain adequate patient health records or failing or refusing to make health records promptly available to the patient or to another health practitioner or provider on request and receipt of proper authorization.

(q) Deriving direct or indirect compensation from referring a patient without disclosing to the patient in writing the extent of the compensation.

(r) Deriving a financial interest in products the acupuncturist endorses or recommends to the patient without disclosing to the patient in writing the extent of the financial interest.

(s) Having sexual intimacies with a patient in the practice of acupuncture.

(t) Failing to appropriately exercise control over or supervise an acupuncture student employed by or assigned to the practitioner in the practice of acupuncture.

(u) Failing to furnish information in a timely manner to the board or its investigators or representatives if the information is legally requested by the board.

(v) Supervising or engaging in a clinical training program in acupuncture without being approved and registered by the board for that program.

(w) Knowingly making a false, fraudulent or misleading statement, written or oral, to the board.

(x) Failing to exercise proper care for a patient by abandoning or neglecting a patient in need of immediate care without making reasonable arrangements for the continuation of care or by failing to refer the patient to another appropriate health care provider when necessary.

(y) Failing to use needles that have been sterilized according to clean needle technique principles approved by the board.

(z) Failing to demonstrate professional standards of care and training and education qualifications, as established by the board in rule, for performing a therapeutic modality.

(aa) Prescribing or administering medicine or drugs, except as allowed pursuant to this chapter.

§ 32-3902 Acupuncture board of examiners; members; qualifications; terms; removal; compensation

A. The acupuncture board of examiners is established consisting of the following members who are appointed by the governor:

1. Through January 16, 2022, four members who are licensed to practice acupuncture pursuant to this chapter and who have practiced acupuncture in this state or any other state for at least one year. Not more than two of these members may be graduates of the same school or college of acupuncture. The governor may make these appointments from a list of names submitted by a statewide acupuncture society.

2. Through January 17, 2022, three consumers who:

(a) Are not employed in a health profession.

(b) Do not have any pecuniary interest in a school of medicine or health care institution.

(c) Demonstrate an interest in health issues in this state.

3. Through January 17, 2022, two members who are licensed pursuant to chapter 8, 13, 14, 17 or 29 of this title. These members shall not be licensed pursuant to the same chapter.

4. Beginning January 17, 2022, one member who is certified or licensed to practice auricular acupuncture or acupuncture pursuant to this chapter.

5. Beginning January 20, 2022, three members who are licensed to practice acupuncture pursuant to this chapter and who have practiced acupuncture in this or any other state for at least one year. Not more than two of these members may be graduates of the same school or college of acupuncture. The governor may make these appointments from a list of names submitted by a statewide acupuncture society.

6. For appointments made on or after January 18, 2022, two consumers who meet all of the following:

(a) Are not employed in a health profession.

(b) Do not have any pecuniary interest in a school of medicine or health care institution.

(c) Demonstrate an interest in health issues in this state.

7. For appointments made on or after January 18, 2022, one member who is licensed pursuant to chapter 8, 13, 14, 17 or 29 of this title.

B. Before appointment by the governor, a prospective member of the board shall submit a full set of fingerprints to the governor for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

C. Board members shall be residents of this state for at least one year immediately preceding their appointment.

D. Board members serve three-year terms to begin and end on the third Monday in January. A member shall not serve more than two consecutive terms.

E. The board shall meet in January of each year to elect a chairperson and vice chairperson.

F. The board shall meet quarterly and at the call of the chairperson or a majority of board members.

G. Board members are eligible to receive compensation in an amount not to exceed $50 per day for each day of actual service in the business of the board and are eligible for reimbursement of expenses necessarily and properly incurred in attending board meetings.

H. The governor may remove a board member from office for malfeasance, dishonorable conduct or unprofessional management of board duties.

I. The term of any member automatically ends on resignation or absence from this state for a period of at least six months. The governor shall fill vacancies for an unexpired portion of a term in the same manner as regular appointments.

J. Board members and board employees are not subject to civil liability for any act done or proceeding undertaken or performed in good faith and in furtherance of the purposes of this chapter.

§ 32-3903 Powers and duties of the board

A. The board shall:

1. Adopt rules necessary to enforce this chapter.

2. Initiate investigations and take disciplinary actions to enforce this chapter.

3. Evaluate the qualifications of applicants and issue licenses to qualified applicants.

4. Adopt and use a seal to authenticate official board documents.

5. Establish fees pursuant to section 32-3927.

6. Adopt rules for clinical training.

B. The board may:

1. Subject to title 41, chapter 4, article 4, employ personnel needed to carry out board functions.

2. Purchase, lease, rent, sell or otherwise dispose of personal and real property for the operations of the board.

3. Approve examinations for licensure.

§ 32-3904 Executive director; personnel; duties; compensation

A. Subject to title 41, chapter 4, article 4, the board may appoint an executive director who serves at the pleasure of the board. The executive director shall not be a board member.

B. The executive director is eligible to receive compensation set by the board within the range determined pursuant to section 38-611.

C. The executive director shall:

1. Perform the administrative duties of the board.

2. Subject to title 41, chapter 4, article 4, employ personnel needed to carry out board functions.

3. Perform other duties as directed by the board.

§ 32-3905 Acupuncture board of examiners fund

(L24, Ch. 222, sec. 47. Eff. until 7/1/28)

A. The acupuncture board of examiners fund is established consisting of fees collected pursuant to section 32-3927. The board shall administer the fund. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies collected under this chapter in the state general fund and deposit the remaining eighty-five percent in the acupuncture board of examiners fund.

B. Monies deposited in the acupuncture board of examiners fund are subject to section 35-143.01.

§ 32-3905 (Version 2) Acupuncture board of examiners fund

(L24, Ch. 222, sec. 48. Eff. 7/1/28)

A. The acupuncture board of examiners fund is established consisting of fees collected pursuant to section 32-3927. The board shall administer the fund. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies collected under this chapter in the state general fund and deposit the remaining ninety percent in the acupuncture board of examiners fund.

B. Monies deposited in the acupuncture board of examiners fund are subject to section 35-143.01.

§ 32-3906 Third party reimbursements

This chapter does not require direct third party reimbursement to persons who are licensed pursuant to this chapter.

Article 2 Licensure

§ 32-3921 Licensure; acts and persons not affected

A. A person shall not practice acupuncture without a license issued pursuant to this chapter.

B. This chapter does not apply to:

1. Health care professionals licensed pursuant to this title practicing within the scope of their license.

2. A student enrolled in a school of acupuncture approved by the board practicing acupuncture under the direct supervision of an acupuncturist licensed pursuant to this chapter as a part of a course of study approved by the board.

3. The practice of acupuncture in this state by a person licensed or certified to perform acupuncture by any other jurisdiction if the person is doing so in the course of regular instruction of a school of acupuncture approved by the board or in an educational seminar by a professional organization of acupuncture, if in the case of an educational seminar the practice is supervised directly by a person licensed pursuant to this chapter or by a health professional licensed pursuant to this title whose scope of practice includes acupuncture.

4. An acupuncturist who resides outside the state and who is authorized to practice acupuncture in that jurisdiction, if the person engages in a single or infrequent consultation with an acupuncturist licensed in this state and the consultation regards a specific patient or patients.

5. A person who self-administers acupuncture.

§ 32-3922 Acupuncture detoxification specialist for chemical dependency or trauma; certificate; requirements; fingerprint clearance card; informed consent; definition

A. The board may issue an acupuncture detoxification specialist certificate to a person who practices auricular acupuncture for the purpose of treating alcoholism, substance abuse, trauma or chemical dependency if the person does all of the following:

1. Provides documentation of successfully completing a board-approved training program in acupuncture for treating alcoholism, substance abuse, trauma or chemical dependency that meets or exceeds standards of training established by the national acupuncture detoxification association or a board-approved group.

2. Provides documentation satisfactory to the board of successfully completing a board-approved clean needle technique course.

3. Submits an application as prescribed by the board and a fee prescribed by section 32-3927.

4. Discloses in an application for initial certification or recertification all other active and past professional health care licenses and certificates issued to the applicant in this state or by another state, district or territory of the United States.

B. Beginning January 1, 2023, an applicant for initial certification or recertification pursuant to this section shall possess a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1.

C. A certificate issued pursuant to this section allows the certificate holder to practice auricular acupuncture under the supervision of a person who is licensed pursuant to this chapter.

D. A certificate issued pursuant to this section is valid for one year. The certificate may be renewed by the board if the certificate holder submits an application as prescribed by the board and a fee prescribed by section 32-3927 before the certificate expires.

E. Before treating a patient, an auricular acupuncturist shall obtain from the patient a signed informed consent that has been approved by the board.

F. For the purposes of this section, "auricular acupuncture" means applying acupuncture needles to the pinna, lobe or auditory meatus to treat alcoholism, substance abuse, trauma or chemical dependency.

§ 32-3923 Use of title or abbreviation by licensee; prohibited acts; posting of license

A. A person who is licensed pursuant to this chapter may use the title "licensed acupuncturist" and the abbreviation "L.Ac.".

B. A person who is not licensed pursuant to this chapter shall not use any title, abbreviation, words, letters, signs or figures to indicate that the person is licensed pursuant to this chapter.

C. Possession of a license pursuant to this chapter does not by itself entitle a person to use the title "doctor" or "physician".

D. A person who is licensed pursuant to this chapter shall post the license or an official duplicate of the license in a conspicuous location in the reception area of each office facility of that licensee.

E. A person who is licensed pursuant to this chapter shall not represent to any member of the public that, by virtue of that license, the person is licensed to practice any modality other than acupuncture.

§ 32-3924 Qualifications for licensure; fingerprint clearance card

A. To receive a license to practice acupuncture pursuant to this chapter, a person shall submit an application as prescribed by the board. The applicant shall disclose in an application for initial licensure all other active and past professional health care licenses and certificates issued to the applicant in this state or by another state, district or territory of the United States. The application shall document to the board's satisfaction that the applicant has successfully completed a clean needle technique course approved by the board and meets both of the following:

1. Has either:

(a) Been certified in acupuncture by the national certification commission for acupuncture and oriental medicine, or its successor organization, or another certifying body or examination that is recognized by the board.

(b) Passed the point location module, foundations of oriental medicine module, biomedicine module and acupuncture module offered by the national certification commission for acupuncture and oriental medicine.

(c) Been licensed by another state with substantially similar standards and has not had certification or licensure revoked.

2. Has graduated from or completed training in a board-approved program of acupuncture with a minimum of one thousand eight hundred fifty hours of training that includes at least eight hundred hours of board-approved clinical training.

B. Beginning January 1, 2023, an applicant for initial licensure or license renewal pursuant to this article shall possess a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1.

§ 32-3925 Renewal of license; continuing education

A. Except as provided in section 32-4301, a license issued pursuant to this chapter is subject to renewal each year and expires unless renewed.

B. The executive director shall send a renewal application to each licensee at least sixty days before expiration of the license.

C. A licensee shall submit to the board on request documentation satisfactory to the board that the licensee has successfully completed at least fifteen hours of board-approved continuing education each year.

D. On compliance with board requirements for the renewal of licenses, the board may reinstate a license canceled for failure to renew.

§ 32-3926 Visiting professor certificate

A. The board may issue a visiting professor certificate to an acupuncturist who has received a teaching position in a school of acupuncture in this state if that person demonstrates to the satisfaction of the board that the person has at least five years' experience in the practice of acupuncture and has adequate skill and training. The acupuncturist shall submit an application as prescribed by the board and shall submit the fee prescribed pursuant to section 32-3927.

B. A certificate issued pursuant to this section allows the certificate holder to practice acupuncture only in relation to the certificate holder's faculty position duties.

C. A certificate issued pursuant to this section is valid for one year. The board may grant a one year extension if the certificate holder submits an application at least thirty days before the certificate expires. The board may grant a total of two one-year extensions.

§ 32-3927 Fees

A. By a formal vote at its annual meeting the board shall establish nonrefundable fees that do not exceed the following:

1. For issuance of an initial license, six hundred dollars.

2. For an application for a license or certificate, one hundred fifty dollars.

3. For renewal of a license, six hundred dollars.

4. For late renewal of a license, an additional one hundred dollars.

5. For issuance of a duplicate license or certificate, fifty dollars.

6. For issuance of an initial visiting professor certificate, six hundred dollars.

7. For renewal of a visiting professor certificate, six hundred dollars.

8. For issuance of an initial auricular acupuncture certificate, two hundred fifty dollars.

9. For renewal of an auricular acupuncture certificate, two hundred fifty dollars.

10. For copying records, documents, letters, minutes, applications and files, twenty-five cents a page.

11. For a copy of the minutes to board meetings during the current calendar year, twenty-five dollars for each set of minutes.

B. The board shall charge additional fees for services not required to be provided by this chapter but that the board determines are necessary and appropriate to carry out this chapter. The fees shall not exceed the actual cost of providing these services.

§ 32-3928 Treating animals; certification; requirements; definition

A. An acupuncturist may apply for certification by the board to treat animals if the acupuncturist is nationally certified by the American board of animal acupuncture or the national certification commission for acupuncture and oriental medicine to treat animals. The board may prescribe the procedure for applying for certification and the certification fee. An acupuncturist who receives certification to treat animals may apply all appropriate modalities prescribed in this chapter and the rules adopted pursuant to this chapter in treating animals.

B. An acupuncturist who is certified by the board to treat animals may treat an animal pursuant to section 32-2231.

C. The board shall adjudicate complaints arising from acupuncture treatment on animals and shall consult a licensed veterinarian as a subject matter expert on animal health.

D. For the purposes of this section, "licensed veterinarian" has the same meaning prescribed in section 32-2201.

Article 3 Regulation

§ 32-3951 Denial, revocation or suspension of license; hearings; alternative sanctions

A. The board may deny, revoke or suspend a license issued under this chapter for any of the following reasons:

1. Conviction of a felony or a misdemeanor involving moral turpitude. The record of the conviction or a certified copy from the clerk of the court where the conviction occurred or from the judge of that court is sufficient evidence of conviction.

2. Securing a license under this chapter through fraud or deceit.

3. Unprofessional conduct or incompetence in the conduct of the licensee's practice.

4. Using a false name or alias in the practice of the licensee's profession.

5. Violating this chapter or board rules.

B. If the board determines pursuant to a hearing that grounds exist to revoke or suspend a license, the board may do so permanently or for a fixed period of time and may impose conditions prescribed by the board. The board may also impose a civil penalty of not more than ten thousand dollars for each violation of this chapter. The board shall deposit, pursuant to sections 35-146 and 35-147, civil penalties collected pursuant to this subsection in the state general fund.

C. The board may deny a license without holding a hearing. After receiving notification of the denial, the applicant may request a hearing to review the denial.

D. The board shall conduct any hearing to revoke or suspend a license pursuant to title 41, chapter 6, article 10. Any person appearing before the board may be represented by an attorney.

E. Instead of denying, revoking or suspending a license the board may file a letter of concern, issue a decree of censure, prescribe a period of probation or restrict or limit the practice of a licensee. The board may also issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

F. The board shall promptly notify a licensee's employer if the director initiates a disciplinary action against the licensee.

G. The board may appoint an investigator to provide information to the board concerning an alleged violation of this chapter.

H. The board on its own initiative or on application of any person involved in an investigation or proceeding conducted by the board may issue subpoenas compelling the attendance and testimony of witnesses or demanding the production for examination or copying of documents, reports, records or any other evidence relating to a board investigation or proceeding.

§ 32-3952 Right to examine and copy evidence

In connection with a board investigation conducted pursuant to 32-3951, the board at all reasonable times has the right to examine and copy any documents, reports, records or other physical evidence of any person being investigated or reports, records and any other documents maintained by and in the possession of any clinic, licensee's office or other public or private agency and any health care institution as defined in section 36-401 if the board believes this information is related to unprofessional conduct or the mental or physical ability of a licensee to practice acupuncture.

§ 32-3953 Injunctive relief; bond; service of process

A. In addition to all other available remedies, if the board has any reason to believe that a person has violated this chapter or a board rule, the board through the attorney general or the county attorney of the county in which the violation is alleged to have occurred may apply to the superior court in that county for an injunction restraining that person from engaging in the violation.

B. The court shall issue a temporary restraining order, a preliminary injunction or a permanent injunction without requiring the board to post a bond.

C. Service of process may be on the defendant in any county of this state where the defendant is found.

§ 32-3954 Violation; classification

A person who violates this chapter is guilty of a class 1 misdemeanor.

§ 32-3955 Acupuncture assistants; scope of duties; registration required; use of title

A. This chapter does not prohibit an acupuncture assistant from assisting a licensed acupuncturist pursuant to rules adopted by the board, consistent with the following:

1. An acupuncture assistant may:

(a) Remove acupuncture needles.

(b) Monitor acupuncture procedures such as the application of heat or moxibustion.

(c) Perform noncritical functions such as gathering basic patient information, taking blood pressure and attending to patient treatment rooms.

2. An acupuncture assistant may not insert acupuncture needles or evaluate, interpret, design or modify established treatment programs of acupuncture care.

3. An acupuncture assistant shall register with the board on a form prescribed by the board. The board may suspend or revoke the registration of an acupuncture assistant who violates any provision of this chapter related to the practice of acupuncture or who indulges in conduct or a practice that is detrimental to the health or safety of the public.

B. It is unlawful for a person to do either of the following:

1. Work as an acupuncture assistant except under the supervision of a licensed acupuncturist pursuant to this chapter and the rules adopted by the board.

2. Use the abbreviation "A.A." or the term "acupuncture assistant" unless the person is working under the supervision of a licensed acupuncturist pursuant to this chapter and the rules adopted by the board.

Chapter 40 Board of Certified Reporters

Article 1 General Provisions

§ 32-4001 Scope of chapter

This chapter applies to persons, entities or courts that use stenographic or voice writing means of recording but does not apply to other means of recording. This chapter does not limit the contempt powers of the court or the authority of the court to discipline court employees.

§ 32-4002 Definitions

In this chapter, unless the context otherwise requires:

1. "Board" means the board of certified reporters.

2. "Certification" means a standard certificate that is issued by the board to a person who meets the requirements of sections 32-4021 and 32-4022 and does not include a temporary certificate.

3. "Certified reporter" means a person who is certified by the board and who records and transcribes a verbatim record in any sworn proceeding by means of written symbols or abbreviations in shorthand, machine writing or voice writing.

4. "Certify" means board authorization to engage in activities regulated by the board.

5. "Report" means to stenographically or by voice writing record and transcribe sworn proceedings.

6. "Voice writing" means the making of a verbatim record of the spoken word by means of repeating the words of the speaker into a device that is capable of digital translation into text.

§ 32-4003 Reporter certification; violation

A. A person shall not report proceedings in any court in this state and shall not report depositions in this state for use in any court in this state unless the person is certified pursuant to this chapter.

B. A certified reporter shall sign and certify each transcript that the certified reporter prepares before the transcript may be used in court, except for transcripts that the reporter prepares for proceedings that occurred before July 1, 2000.

C. A certified reporter shall include the title "certified reporter" or the abbreviation "CR" and the reporter's certificate number on the title or cover page of any transcript, on any business card, advertisement or letterhead and on the certificate of any transcript.

D. It is unlawful for any person who is not certified pursuant to this chapter to represent oneself as a certified reporter.

§ 32-4004 Board of certified reporters

A. The board of certified reporters is established consisting of the following members:

1. The chief justice of the supreme court or the chief justice's designee.

2. One judge of the court of appeals who is appointed by the chief justice of the supreme court.

3. One superior court judge who is appointed by the chief justice of the supreme court.

4. Two certified reporters who are residents of this state, who have been official court reporters for at least five years and who are appointed by the chief justice of the supreme court.

5. Two certified reporters who are residents of this state, who have been freelance reporters for at least five years and who are appointed by the chief justice of the supreme court.

6. One attorney who is a resident of this state, who has been licensed to practice law in this state for at least five years and who is appointed by the chief justice of the supreme court.

7. One public member who is appointed by the chief justice of the supreme court.

B. Members who are appointed pursuant to subsection A, paragraphs 2 through 7 serve five year terms. The chief justice shall fill a vacancy for any unexpired portion of a term in the same manner as the original appointment.

C. A majority of the members shall elect a chairperson.

D. Public members of the board are not eligible to receive compensation but are eligible to receive reimbursement for expenses pursuant to title 38, chapter 4, article 2.

E. The board shall assure that a record of its meetings and all official actions, a register of all applicants for certification and a roster of all certified reporters are maintained. The board shall designate the location where it maintains the register and roster.

§ 32-4005 Program administration; duties

A. The supreme court shall:

1. Administer the reporter certification program.

2. Adopt rules.

3. Establish and collect fees, costs and penalties that are necessary for the implementation and enforcement of the program.

B. The board shall:

1. Make recommendations to the supreme court regarding rules, policies and procedures to implement and enforce this chapter, including the following:

(a) Applicant testing.

(b) Fees.

(c) A code of conduct.

(d) Continuing education.

(e) Any other matter pertaining to certified reporters.

2. Determine through testing and other means an applicant's ability to make a verbatim record of proceedings that may be used in any court by means of written symbols or abbreviations in shorthand, machine writing or voice writing.

3. Issue certificates to qualified applicants.

4. Investigate and take disciplinary action pursuant to section 32-4006.

5. Require each applicant to submit a full set of fingerprints to the supreme court for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

§ 32-4006 Enforcement and disciplinary procedures

A. On its own motion or on receipt of a complaint, the board shall investigate, prosecute and adjudicate alleged violations of this chapter, as appropriate, and may conduct any investigation that would aid in the enforcement of this chapter.

B. For the purposes of investigations or hearings under this chapter, the board may administer oaths and affirmations, subpoena witnesses, take evidence and require the production of documents, records or information, either kept in original form or electronically stored or recorded, or other items that are relevant or material to the inquiry.

C. If a person refuses to obey a subpoena issued pursuant to this section, the board may request the superior court to issue an order that requires the appearance by a person or the production of documents or other items, or both. The court may treat the failure to obey the order as contempt of court and may punish the contempt.

D. The board shall impose cease and desist orders, issue letters of concern or warnings or order revocation or suspension of certification for violations of this article and assess costs and penalties associated with these activities. These costs and penalties shall be deposited in the certified reporters fund established by section 32-4007.

§ 32-4007 Certified reporters fund; report

A. The certified reporters fund is established consisting of fees, costs and penalties collected pursuant to sections 32-4005, 32-4006 and 32-4008 and monies appropriated to the fund. The supreme court shall administer the fund.

B. Monies deposited in the fund are continuously appropriated and are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

C. The supreme court may receive and expend monies from the fund for the purposes of this chapter.

D. On notice from the supreme court, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

§ 32-4008 Fees

The supreme court shall set and collect the following fees to carry out this chapter:

1. Examination fees.

2. Certificate application fees.

3. Certificate renewal fees.

4. Temporary certificate application fees.

5. Temporary certificate renewal fees.

6. Any other fees that are necessary and appropriate to carry out this chapter.

Article 2 Certification

§ 32-4021 Standard certification qualifications; application

A. An applicant for standard certification as a certified reporter shall apply on approved forms and, at a minimum, shall:

1. Be at least eighteen years of age.

2. Be a citizen or legal resident of the United States.

3. Satisfy the requirements of section 32-4022.

4. Possess a high school diploma or general equivalency diploma or a similar document or certificate.

5. Pursuant to rules adopted by the supreme court, demonstrate reasonable proficiency in making verbatim records of trial or judicial or related proceedings.

6. Comply with the laws and rules and orders adopted by the supreme court governing certified reporters in this state.

7. Pay the fees established pursuant to section 32-4008.

8. Submit a full set of fingerprints with the fee prescribed in section 41-1750 to the supreme court for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544.

B. If the board is satisfied that an applicant meets the requirements of this section and section 32-4022, the supreme court shall issue a certificate to the applicant. The board may refuse to issue a certificate if section 32-4024 applies.

§ 32-4022 Examination; requirements; exemption

A. A person shall not be admitted to an examination without presenting satisfactory evidence to the board that before the date on which the application for an examination was filed the person has done at least one of the following:

1. Obtained one year of experience in making verbatim records of meetings, conferences, hearings or judicial or related proceedings by means of written symbols or abbreviations in shorthand, machine writing or voice writing and in transcribing these records.

2. Obtained a verified certificate of the satisfactory completion of a prescribed course of study from a court reporting school or a certificate from a school that evidences the equivalent proficiency and the ability to make a verbatim record of material that is dictated pursuant to rules adopted by the supreme court.

3. Obtained a national court reporters association's registered professional reporter or registered merit reporter certificate.

4. Obtained a valid certificate to practice court reporting that is issued by a state other than this state if the other state's requirements and certifying examination are substantially similar to or more stringent than those in this state.

5. Demonstrated reasonable proficiency in making verbatim records of trial or judicial or other related proceedings by passing an approved examination for certification pursuant to rules adopted by the supreme court.

B. The examination for certification consists of the following two parts:

1. A national court reporters association's registered professional reporter examination, a national verbatim reporters association’s certified verbatim reporters association examination or an alternative demonstration of proficiency approved by the supreme court.

2. A written knowledge test of rules of the supreme court of Arizona and statutes of this state relating to court reporters.

C. The board shall review the content and subject matter of the examination and shall make changes as deemed necessary.

D. The supreme court shall specify a date and place for the examinations.

E. Pursuant to rules adopted by the supreme court, an applicant who presents proof of having passed an examination approved by the supreme court including a national court reporters association's registered professional reporter examination, a national court reporters association's registered merit reporter examination, a national verbatim reporters association’s certified verbatim reporters association examination or an alternative demonstration of proficiency approved by the supreme court and the test prescribed by subsection B, paragraph 2 may apply for certification without taking and passing the examination prescribed by subsection B, paragraph 1.

F. An applicant who fails to pass the examination prescribed by subsection B, paragraph 2 may apply for reexamination at any time.

G. An applicant shall be disqualified from taking any future examination if the board determines that the applicant engaged in fraud, dishonesty or corruption while taking the examination.

§ 32-4023 Certificate renewal

A. Except as provided in section 32-4301, a certificate issued pursuant to this article is subject to renewal and expiration as prescribed by rules adopted pursuant to section 32-4005.

B. The certificate holder is responsible for applying for a renewal certificate. On receipt of the renewal application and the renewal fee, the board shall issue the applicant a new certificate unless the board finds that the applicant does not meet the requirements for renewal or that section 32-4024 applies.

C. A certificate holder shall inform the supreme court of any name or address change within thirty days after the change occurs.

D. A certificate holder shall include with the application for renewal documentation satisfactory to the board that the certificate holder has successfully completed at least ten hours of approved continuing education each year.

§ 32-4024 Certificate denial

A. The board may refuse to issue a certificate or to renew a certificate if the board finds that any of the following applies:

1. The applicant does not meet to the board’s satisfaction the requirements under sections 32-4021 and 32-4022.

2. The applicant has not been fingerprinted and the supreme court has not received and reviewed the criminal records check analysis.

3. The applicant has not submitted the applicable documents and fees.

4. The applicant committed fraud, dishonesty, corruption or material misrepresentation in applying for a certificate or on a certificate examination in this state or another state.

5. The applicant has a record of conviction by final judgment of a felony offense or any other offense involving moral turpitude.

6. The applicant is currently on probation, parole or community supervision for a felony offense or is named in an outstanding warrant.

7. The court has ordered treatment for the applicant pursuant to title 36 or has found the applicant to be incapacitated pursuant to title 14.

8. The applicant is subject to revocation or suspension of a certificate pursuant to section 32-4041 or has had any occupational or professional license denied, revoked or suspended.

9. The applicant has been found civilly liable in an action involving fraud, misrepresentation, material omission, misappropriation, theft or conversion.

B. Pursuant to rules adopted by the supreme court, the board may refuse to issue or renew a certificate for cause.

§ 32-4025 Administration of oaths

A certified reporter may administer oaths and affirmations.

Article 3 Regulation

§ 32-4041 Revocation or suspension of certificate

A. The board may revoke or suspend a certificate issued under this chapter for any of the following reasons:

1. Unprofessional conduct.

2. Violations of this chapter.

3. Gross negligence or incompetence in the performance of duties.

4. Fraud, dishonesty or corruption.

5. Inability to perform the duties of a certified reporter at a level of skill that is required by the board.

6. Aiding or assisting another person to engage in the verbatim reporting of any judicial proceeding if the other person is not a certified reporter.

7. Conviction by final judgment of a felony offense or any other offense involving moral turpitude.

8. The court has ordered treatment for a certified reporter pursuant to title 36 or has found a certified reporter to be incapacitated pursuant to title 14.

B. Before revoking or suspending a certificate, the board shall give a certificate holder notice and an opportunity for a hearing, except that if the board finds that the public health, safety or welfare requires emergency action and incorporates a finding to that effect in the order, the board may order the summary suspension of a certificate pending a proceeding for certificate revocation or other action.

§ 32-4042 Certificate reinstatement

A person whose certificate was suspended or revoked by the board may apply in writing for a reinstatement of the certificate on a showing of good cause and paying the renewal fee. The board may grant or deny the request, may require the applicant to take or retake the examination for certification and may impose other conditions for reinstatement.

Chapter 41 Athletic Trainers

Article 1 General Provisions

§ 32-4101 Definitions

In this chapter, unless the context otherwise requires:

1. "Athletic illness" means an illness that arises from, or a manifestation of an illness that occurs as a result of, a person's participation in or preparation for games or sports or participation in recreational activities or physical fitness activities.

2. "Athletic injury" means an injury sustained by a person as a result of that person's participation in or preparation for games or sports or participation in recreational activities or physical fitness activities, or any injury sustained by a person that is of the type that occurs during participation in or preparation for games or sports or participation in recreational activities or physical fitness activities, regardless of the circumstances under which the injury was sustained.

3. "Athletic trainer" means a person who is licensed pursuant to this chapter.

4. "Athletic training" includes the following performed under the direction of a licensed physician and for which the athletic trainer has received appropriate education and training as prescribed by the board:

(a) The prevention, recognition, examination, evaluation, rehabilitation and management of athletic injuries.

(b) The prevention, evaluation, immediate care and monitoring of athletic illnesses.

(c) The referral of a person receiving athletic training services to appropriate health care professionals, as necessary.

(d) The use of heat, cold, water, light, sound, electricity, passive or active exercise, massage, mechanical devices or any other therapeutic modality to prevent, treat, rehabilitate or recondition athletic injuries.

(e) The planning, administration, evaluation, and modification of methods for prevention and risk management of athletic injuries and athletic illnesses.

(f) Education and counseling related to all aspects of the practice of athletic training.

(g) The use of topical pharmacological agents in conjunction with the administration of therapeutic modalities and pursuant to a prescription issued pursuant to the laws of this state and for which an athletic trainer has received appropriate education and training.

5. "Athletic training student" means a student who is currently enrolled in an athletic training education program that is accredited by an accrediting agency recognized by the board.

6. "Board" means the board of athletic training.

7. "Direct supervision" means that the supervising athletic trainer is present in the facility or on the campus where athletic training students are performing services, is immediately available to assist the person being supervised in the services being performed and maintains continued involvement in appropriate aspects of the services being performed.

8. "Direction of a licensed physician" means direction as prescribed by the board by rule pursuant to section 32-4103.

9. "Dry needling" means a skilled intervention that is performed by an athletic trainer and that uses a thin filiform needle to penetrate the skin and stimulate underlying neural, muscular and connective tissues to evaluate and manage neuromusculoskeletal conditions, pain and movement impairments.

10. "Licensed physician" means a person who is licensed pursuant to chapter 13 or 17 of this title.

11. "Restricted license" means a license on which the board places restrictions or conditions, or both, as to the scope of practice, place of practice, supervision of practice, duration of license status or type or condition of a person to whom the licensee may provide services.

§ 32-4102 Board; membership; duties; immunity

A. The board of athletic training is established consisting of the following members appointed by the governor:

1. Three athletic trainers who are residents of this state, possess an unrestricted license to practice athletic training in this state and have been practicing in this state for at least five years immediately preceding their appointment. The governor may make these appointments from a list of names submitted by a statewide athletic training association or any other group or person. The initial three appointees are not required to be licensed pursuant to this chapter at the time of selection but shall meet all of the qualifications for licensure as prescribed by this chapter.

2. Two public members who are residents of this state and who are not affiliated with and do not have any financial interest in any health care profession but who have an interest in consumer rights.

B. Board members serve staggered five year terms that begin and end on the third Monday in January. Board members shall not serve for more than two successive five year terms or for more than ten consecutive years.

C. If requested by the board, the governor may remove a board member for misconduct, incompetence or neglect of duty.

D. Board members are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2 to cover necessary expenses for attending each board meeting or for representing the board in an official board approved activity.

E. A board member who acts within the scope of board duties, without malice and in the reasonable belief that the person's action is warranted by law is not subject to civil liability.

§ 32-4103 Board; powers and duties; direction of athletic trainers; continuing education requirements; civil immunity

A. The board shall administer and enforce this chapter and shall:

1. Evaluate the qualifications of applicants for licensure.

2. Designate the national examination that it requires applicants to pass.

3. Issue licenses to persons who meet the requirements of this chapter.

4. Establish requirements pertaining to the ratio between supervising athletic trainers and athletic training students.

5. Regulate the practice of athletic training by interpreting and enforcing this chapter.

6. Establish requirements for assessing the continuing competence of licensees.

7. Adopt and revise rules to enforce this chapter.

8. Meet at least once each quarter in compliance with the open meeting requirements of title 38, chapter 3, article 3.1 and keep an official record of these meetings.

9. At its first regular meeting after the start of each calendar year, elect officers from among its members and as necessary to accomplish board business.

10. Provide for the timely orientation and training of new professional and public appointees to the board regarding board licensing and disciplinary procedures, this chapter, board rules and board procedures.

11. Maintain a current list of all licensees. This list shall include the licensee's name, current business and residential addresses, telephone numbers and license number.

12. Enter into contracts for services necessary to enforce this chapter.

13. Publish, at least annually, final disciplinary actions taken against a licensee.

14. Publish, at least annually, board rulings, opinions and interpretations of statutes or rules.

15. Not later than December 31 of each year, submit a written report of its actions and proceedings to the governor.

B. The board shall adopt rules to prescribe the direction of athletic trainers by a licensed physician, including recommendations, guidelines and instructions as to standard protocols to be followed in the general, day-to-day activities in which athletic trainers engage. These rules shall require that postathletic injury or athletic illness treatment direction be provided by the person's treating physician or, if applicable, by the team physician for the institution or organization that employs the athletic trainer. If appropriate, athletic trainers may also seek direction as to the treatment of an athletic injury or athletic illness from any health care provider who is involved in that person's treatment and who is not licensed pursuant to this chapter but who is licensed pursuant to this title.

C. The board shall adopt rules to prescribe the appropriate education and training for services that are proper to be performed by an athletic trainer.

D. The board may:

1. Adopt rules to prescribe continuing education requirements for licensure renewal, including a rule to allow the board to waive continuing education requirements for reasons of extreme hardship.

2. Appoint advisory committees to assist it in the performance of its duties. An advisory committee member appointed pursuant to this paragraph is not eligible to receive compensation but is eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

3. Report any violations of this chapter or rules adopted pursuant to this chapter to a county attorney, the attorney general, a federal agency or a state or national organization, as appropriate.

E. A physician who, without compensation, provides direction to an athletic trainer that consists of recommendations, guidelines and instructions as to standard protocols to be followed in the general day-to-day activities in which athletic trainers engage is not subject to civil liability for providing that direction if the physician is not guilty of gross negligence or intentional misconduct in providing that direction.

§ 32-4104 Executive director; personnel

A. The executive director of the board of occupational therapy examiners shall also serve as the executive director of the board of athletic training. Both boards shall jointly select the executive director.

B. The board of athletic training shall select staff to serve its board or shall direct the executive director to select these staff members.

§ 32-4105 Athletic training fund

(L24, Ch. 222, sec. 49. Eff. until 7/1/28)

A. The athletic training fund is established. The board shall administer the fund. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies from whatever source that come into the possession of the board in the state general fund and deposit the remaining eighty-five percent in the athletic training fund.

B. Monies deposited in the athletic training fund are subject to section 35-143.01.

§ 32-4105 (Version 2) Athletic training fund

(L24, Ch. 222, sec. 50. Eff. 7/1/28)

A. The athletic training fund is established. The board shall administer the fund. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies from whatever source that come into the possession of the board in the state general fund and deposit the remaining ninety percent in the athletic training fund.

B. Monies deposited in the athletic training fund are subject to section 35-143.01.

Article 2 Licensure

§ 32-4121 Persons and activities not required to be licensed

This chapter does not apply to:

1. A health care professional who is licensed pursuant to this title and who practices within the scope of that person's license if that person does not claim to be an athletic trainer or a provider of athletic training services.

2. A person who is pursuing a course of study leading to a degree as an athletic trainer in a professional education program approved by the board if that person is satisfying supervised clinical education requirements related to the person's athletic training education while under the direct supervision of a licensed athletic trainer.

3. An athletic trainer who is practicing in the United States armed services, United States public health service or United States veterans administration pursuant to federal regulations for state licensure of health care providers.

4. An athletic trainer who resides and is employed in another jurisdiction and who possesses the required licensure, certification or registration necessary to practice athletic training under the laws of the jurisdiction in which the athletic trainer is employed if that person is performing athletic training in this state in connection with teaching or participating in an educational seminar or is providing athletic training services in this state to persons of a bona fide professional, intercollegiate, interscholastic or amateur sports organization by which the athletic trainer is employed, for not more than one hundred twenty days in any twelve month period.

§ 32-4122 Qualifications for licensure

An applicant for a license as an athletic trainer shall:

1. Have successfully completed the application process.

2. Possess a minimum of a baccalaureate degree from an accredited institution with coursework and supervised clinical experience as required and approved by the board.

3. Have passed a national examination approved by the board within one year before the date of application or currently possess certification as an athletic trainer from a nationally recognized board of certification.

4. Pay the application fee prescribed in section 32-4126.

§ 32-4123 Application; statement of deficiencies; hearing

A. An applicant for licensure shall file a completed application as required by the board. The applicant shall include application and examination fees as prescribed in section 32-4126.

B. The board may return an application with a statement of deficiencies. On request of an applicant who disagrees with the statement, the board shall hold a hearing pursuant to title 41, chapter 6.

§ 32-4124 License renewal; changes of name or addresses

A. Except as provided in section 32-4301, a license issued pursuant to this chapter is subject to renewal each year and expires unless renewed.

B. The executive director shall send a renewal reminder to each licensee at least sixty days before the license expires.

C. Each licensee is responsible for reporting to the board a name change and changes in business, home and email addresses within thirty days after any change.

§ 32-4125 Reinstatement of license

A. The board may reinstate a lapsed license on payment of a renewal fee and a reinstatement fee and proof that the applicant has met all requirements for continuing competency established by the board.

B. If a person’s license has lapsed for more than three consecutive years, that person shall reapply for a license and pay all applicable fees. The person shall also demonstrate to the board's satisfaction competency in the practice of athletic training or shall serve an internship under a restricted license or take remedial courses as determined by the board, or both, at the board’s discretion. The board may also require the applicant to take an examination.

§ 32-4126 Fees

A. The board shall establish and collect nonrefundable fees that do not exceed the following:

1. For an application for an original license, three hundred fifty dollars.

2. For a certificate of renewal of a license, two hundred fifty dollars.

3. For an application for reinstatement of a license, three hundred fifty dollars.

4. For each duplicate license, fifty dollars.

5. For copying records, documents, letters, minutes, applications and files, twenty-five cents a page.

B. The board shall charge additional fees for services not required to be provided by this chapter but that the board determines are necessary and appropriate to carry out this chapter. The fees shall not exceed the actual cost of providing these services.

§ 32-4127 Temporary licenses

A. The executive director may issue a temporary license to a person who meets all of the following requirements:

1. Submits a completed application.

2. Submits the application fee for licensure pursuant to this chapter.

3. Submits proof satisfactory to the board of current certification by a nationally recognized board of certification.

4. Possesses a valid fingerprint clearance card pursuant to section 32-4128.

B. A temporary license:

1. Is valid for not more than ninety days.

2. Shall not be renewed.

3. Is void on the issuance or denial of an original license.

C. The board may revoke a temporary license for a violation of this chapter. The board shall hold a hearing at the request of a person whose temporary license is revoked by the board.

D. The board may adopt rules to carry out this section.

§ 32-4128 Fingerprinting; requirement

A. Beginning January 1, 2022, an applicant for original licensure, license renewal, license reinstatement or temporary licensure shall possess a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1.

B. This section does not affect the board's authority to otherwise issue, deny, cancel, terminate, suspend or revoke a license or a temporary license.

Article 3 Regulation

§ 32-4151 Lawful practice

A. An athletic trainer shall refer a person with an athletic injury or athletic illness to one or more appropriate health care practitioners if the athletic trainer has reasonable cause to believe symptoms or conditions are present that require services beyond the scope of practice of athletic training or if athletic training is contraindicated.

B. An athletic trainer shall adhere to the recognized standards and ethics of the athletic training profession and as further established by rule.

C. This chapter does not authorize an athletic trainer to practice any other profession regulated under this title and does not expand the scope of practice of any health care provider who is not licensed pursuant to this chapter but who is licensed pursuant to this title.

D. This chapter does not authorize an athletic trainer to treat an athletic illness at any time other than during a person's participation in or preparation for games or sports or participation in recreational activities or physical fitness activities.

§ 32-4152 Use of titles; restrictions; violation; classification

A. An athletic trainer shall use the letters "AT" or the title "athletic trainer", or both, in connection with the athletic trainer's name or place of business to denote licensure under this chapter.

B. A person or business entity or its employees, agents or representatives shall not use in connection with that person's name or the name or activity of the business the words "athletic training" or "athletic trainer", the letters "AT/L", "L/AT", "ATC/L", "L/ATC", "A.T.", "AT", "L.A.T." or "A.T.L." or any other words, abbreviations or insignia indicating or implying directly or indirectly that athletic training is provided or supplied unless the services are provided by an athletic trainer licensed pursuant to this chapter. A person or entity that violates this subsection is guilty of a class 1 misdemeanor.

§ 32-4153 Grounds for disciplinary action

The following are grounds for disciplinary action:

1. Practicing athletic training in violation of this chapter or rules adopted pursuant to this chapter.

2. Practicing or offering to practice beyond the scope of the practice of athletic training.

3. Obtaining or attempting to obtain a license by fraud or misrepresentation.

4. Engaging in the performance of substandard care by an athletic trainer due to a deliberate or negligent act or failure to act, regardless of whether actual injury to the person cared for is established.

5. Failing to provide direct supervision in accordance with this chapter and rules adopted pursuant to this chapter.

6. Committing any felony or a misdemeanor involving moral turpitude. A conviction by a court of competent jurisdiction is conclusive evidence of the commission of the crime.

7. Practicing as an athletic trainer if the licensee's physical or mental abilities are impaired by the use of alcohol or any other substance that interferes with the ability to safely practice athletic training.

8. Having a license or certificate revoked or suspended or any other disciplinary action taken or an application for licensure or certification refused, revoked or suspended by the proper authorities of another state, territory or country.

9. Engaging in sexual misconduct. For the purpose of this paragraph, "sexual misconduct" includes:

(a) Engaging in or soliciting sexual relationships, whether consensual or nonconsensual, while a provider relationship exists.

(b) Making sexual advances, requesting sexual favors or engaging in other verbal conduct or physical contact of a sexual nature with a person who is treated by the athletic trainer.

(c) Intentionally viewing a completely or partially disrobed patient in the course of treatment if the viewing is not related to treatment under current practice standards.

10. Failing to adhere to the recognized standards and ethics of the athletic training profession.

11. Making misleading, deceptive, untrue or fraudulent representations in violation of this chapter.

12. Charging unreasonable or fraudulent fees for services performed or not performed.

13. Having been adjudged mentally incompetent by a court of competent jurisdiction.

14. Aiding or abetting a person who is not licensed in this state and who directly or indirectly performs activities requiring a license.

15. Failing to report to the board any act or omission of a licensee or applicant or any other person who violates this chapter.

16. Interfering with an investigation or disciplinary proceeding by wilfully misrepresenting facts or by using threats or harassment against any person to prevent that person from providing evidence in a disciplinary proceeding or any legal action.

17. Failing to maintain confidentiality without prior written consent of the individual treated or unless otherwise required by law.

18. Failing to maintain adequate records regarding treatment. For the purposes of this paragraph, "adequate records" means legible records that contain at a minimum a determination of the nature of the injury and the referral and treatment required, the treatment plan, the treatment record, a final summary on conclusion of treatment and sufficient information to identify the person treated.

19. Promoting an unnecessary device, treatment or service for the financial gain of the athletic trainer or of a third party.

20. Providing unwarranted treatment or treatment beyond the point of reasonable benefit.

21. Providing athletic training services that are in any way linked to the financial gain of a referral source.

22. Violating this chapter, board rules or a written order of the board.

23. Failing to demonstrate professional standards of care and training and education qualifications, as established by the board in rule, for performing dry needling when provided as a therapeutic modality.

§ 32-4154 Investigative powers; complaints; emergency action; confidentiality

A. To enforce this chapter the board may:

1. Receive complaints filed against licensees and conduct a timely investigation.

2. Conduct an investigation at any time and on its own initiative without receipt of a written complaint if the board has reason to believe that there may be a violation of this chapter.

3. Issue subpoenas to compel the attendance of any witness or the production of any documentation relative to a case.

4. Take emergency action ordering the summary suspension of a license or the restriction of the licensee's practice pending proceedings by the board.

5. Require a licensee to be examined to determine the licensee's mental, physical or professional competence.

B. If the board finds that the information received in a complaint or an investigation is not of sufficient seriousness to merit direct action against the licensee, it may take any of the following actions:

1. Dismiss the complaint if the board believes the information or complaint is without merit.

2. Forward a confidential advisory letter to the licensee.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of practice standards for licensees, including current developments, skills, procedures or treatment interventions.

C. The board shall notify a licensee of a complaint and the nature of the complaint within ninety days after receiving the complaint.

D. Any person may submit a complaint regarding any licensee or other person who is potentially in violation of this chapter.

E. The board shall keep confidential all information relating to the receipt and investigation of complaints filed against licensees and others until the information becomes public record or as required by law.

§ 32-4155 Informal interviews; hearings

A. The board may request an informal interview with a licensee or any nonlicensed person in order to further its investigation or to resolve a complaint.

B. If at an informal interview the board finds a violation of this chapter has occurred that constitutes grounds for disciplinary action, it may take any disciplinary actions prescribed in section 32-4156, paragraph 1, 2 or 3.

C. If the results of an informal interview indicate that suspension or revocation of a license or the imposition of a civil penalty may be in order, the board shall notify the subject of the investigation of the time and place for a hearing pursuant to subsection D of this section.

D. In lieu of or in addition to an informal interview as provided in subsection A of this section, the board may serve on a licensee a summons and complaint setting forth the grounds for disciplinary action and notice of a hearing to be held before the board at least thirty days after the date of the notice. The notice shall state the time and place of the hearing.

E. A person appearing before the board may be represented by counsel.

F. The hearing officer shall administer oaths to all witnesses, shall keep a record of all oral testimony submitted at the hearing and shall keep the original or a copy of all other evidence submitted. The hearing officer may waive the rules of evidence.

G. A motion for rehearing or review of the board's decision in a disciplinary action shall be filed within fifteen days after service of notice of the decision. The board shall conduct a rehearing or review pursuant to board rules.

H. The service of a summons and complaint and the service of a subpoena shall be as provided for service in civil cases.

I. If a person disobeys a subpoena, the board may petition the superior court for an order requiring appearance or the production of documents.

§ 32-4156 Disciplinary actions; penalties

On proof that a licensee has violated any grounds prescribed in section 32-4153, the board may take the following disciplinary actions singly or in combination:

1. Issue a decree of censure.

2. Prescribe a licensee's scope of practice, place of practice or supervision of practice, the duration of a license or the type or condition of persons cared for by a licensee. The board may require a licensee to report regularly to the board on matters related to the grounds for the restricted license.

3. Suspend a license for a period prescribed by the board.

4. Revoke a license.

5. Refuse to issue or renew a license.

6. Impose a civil penalty of at least two hundred fifty dollars but not more than ten thousand dollars for each violation of this chapter. In addition the board may assess and collect the reasonable costs incurred in a disciplinary hearing when action is taken against a person’s license.

7. Accept the voluntary surrender of a license.

§ 32-4157 Unlawful practice; classification; civil penalties; injunctive relief

A. It is unlawful for any person to practice or in any manner to claim to practice athletic training unless that person is licensed pursuant to this chapter. A person who engages in an activity requiring a license pursuant to this chapter or who uses any word, title or representation in violation of section 32-4152 that implies that the person is licensed to engage in the practice of athletic training is guilty of a class 1 misdemeanor.

B. The board may investigate any person to the extent necessary to determine if the person is engaged in the unlawful practice of athletic training. If an investigation indicates that a person may be practicing athletic training unlawfully, the board shall inform the person of the alleged violation. The board may refer the matter for prosecution regardless of whether the person ceases the unlawful practice of athletic training.

C. The board, through the appropriate county attorney or the office of the attorney general, may apply for injunctive relief in any court of competent jurisdiction or enjoin any person from committing any act in violation of this chapter. Injunctive proceedings are in addition to all penalties and other remedies prescribed in this chapter.

D. A person who aids or requires another person to directly or indirectly violate this chapter or board rules, who permits a license to be used by another person or who acts with the intent to violate this chapter or board rules is subject to a civil penalty of not more than one thousand dollars for each violation and not more than five thousand dollars for each subsequent violation. The board shall hold a hearing before it imposes this penalty.

E. All monies the board collects from civil penalties pursuant to this chapter shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

§ 32-4158 Reporting violations; immunity

A. A person, licensee, corporation, educational institution, athletic organization or health care facility and state or local governmental agencies shall report to the board any conviction, determination or finding that a licensee has committed an act that constitutes grounds for disciplinary action pursuant to section 32-4153.

B. A person is immune from civil liability, whether direct or derivative, for providing information in good faith to the board pursuant to subsection A of this section.

C. The board shall not disclose the identity of a person who provides information unless this information is essential to proceedings conducted pursuant to sections 32-4154 and 32-4155 or unless required by a court.

§ 32-4159 Substance abuse recovery program

In lieu of a disciplinary proceeding prescribed by this article, the board may permit a licensee to actively participate in a board approved substance abuse recovery program if:

1. The board has evidence that the licensee is an impaired professional.

2. The licensee has not been convicted of a felony relating to a controlled substance in any court of law.

3. The licensee enters into a written agreement with the board for a restricted license and complies with all of the terms of the agreement, including making satisfactory progress in the program and adhering to any limitation on the licensee’s practice imposed by the board to protect the public. If a licensee does not enter into such an agreement the board shall immediately begin an investigation and disciplinary proceeding.

4. As part of the agreement established between the licensee and the board, the licensee signs a waiver allowing the substance abuse program to release information to the board if the licensee does not comply with the requirements of this section or is unable to practice with reasonable skill or safety.

§ 32-4160 Public, confidential and privileged information; exception; display of license

A. The public has the right of access to the following information:

1. A list that includes each licensee's place of practice, license number, date of license expiration, status of license and whether the licensee has been subject to a complaint or disciplinary action by the board.

2. A list of official actions taken by the board.

B. The home addresses and home telephone numbers of licensees are not public records and shall be kept confidential by the board.

C. Information pertaining to the relationship between the licensee and a person treated by the licensee is confidential and shall not be communicated to a third party who is not involved in that person's care without that person's prior written consent. If the person is a minor, the person's parent or guardian must also give written consent to these communications.

D. The licensee shall divulge to the board information it requires in connection with any investigation, public hearing or proceeding.

E. The privilege described in subsection C does not extend to cases in which the licensee has a duty to report information as required by law.

F. Each licensee shall display a copy of the licensee's license or current renewal verification in a location accessible to public view at the licensee's place of practice.

§ 32-4161 Judicial review

Board decisions are subject to judicial review pursuant to title 12, chapter 7, article 6.

Chapter 42 Massage Therapy

Article 1 General Provisions

§ 32-4201 Definitions

In this chapter, unless the context otherwise requires:

1. "Board" means the board of massage therapy.

2. "Board recognized school" means a school that is any of the following:

(a) Accredited to offer massage therapy education by an agency recognized by the secretary of the United States department of education.

(b) If located in this state, offered by a community college or approved by the state board for private postsecondary education.

(c) If located in another state or a Canadian province, approved by an agency similar to the state board for private postsecondary education.

(d) A career technical education district program that is offered by a career technical education district as defined in section 15-391.

3. "Bodywork therapy" means massage therapy.

4. "Massage therapist" means a person who is licensed under this chapter to engage in the practice of massage therapy.

5. "Massage therapy" means the following that are undertaken to increase wellness, relaxation, stress reduction, pain relief and postural improvement or provide general or specific therapeutic benefits:

(a) The manual application of compression, stretch, vibration or mobilization of the organs and tissues beneath the dermis, including the components of the musculoskeletal system, peripheral vessels of the circulatory system and fascia, when applied primarily to parts of the body other than the hands, feet and head.

(b) The manual application of compression, stretch, vibration or mobilization using the forearms, elbows, knees or feet or handheld mechanical or electrical devices.

(c) Any combination of range of motion, directed, assisted or passive movements of the joints.

(d) Hydrotherapy, including the therapeutic applications of water, heat, cold, wraps, essential oils, skin brushing, salt glows and similar applications of products to the skin.

6. "Practice of massage therapy" means the application of massage therapy to any person for a fee or other consideration. Practice of massage therapy does not include the diagnosis of illness or disease, medical procedures, naturopathic manipulative medicine, osteopathic manipulative medicine, chiropractic adjustive procedures, homeopathic neuromuscular integration, electrical stimulation, ultrasound, prescription of medicines or the use of modalities for which a license to practice medicine, chiropractic, nursing, occupational therapy, athletic training, physical therapy, acupuncture or podiatry is required by law.

§ 32-4202 Board of massage therapy; members; terms; compensation; immunity

A. The board of massage therapy is established consisting of the following members appointed by the governor:

1. Two massage therapists who are residents of this state, who possess an unrestricted license to practice massage therapy in this state and who have been practicing in this state for at least five years immediately preceding their appointment. The governor may make these appointments from a list of names submitted by a statewide massage or bodywork therapy association, or both, or any other group or person.

2. Three public members who are residents of this state and who are not affiliated with and do not have any financial interest in any health care profession but who have an interest in consumer rights or have a background in compliance or law enforcement issues. At least one public member must be actively involved in programs or services that help to reduce or prevent human trafficking.

B. Board members serve staggered five-year terms that begin and end on the third Monday in January. Board members shall not serve for more than two successive five-year terms or for more than ten consecutive years, except that the term of office for a member of the board appointed to fill a vacancy that occurs before the expiration of a full term is for the unexpired portion of that term, and the governor may reappoint that member to not more than two additional full terms.

C. If requested by the board, the governor may remove a board member for misconduct, incompetence or neglect of duty.

D. Board members are eligible to receive compensation in the amount of $100 per day for each day of actual service in the business of the board and for reimbursement of expenses pursuant to title 38, chapter 4, article 2 to cover necessary expenses for attending each board meeting or for representing the board in an official board approved activity.

E. A board member who acts within the scope of board duties, without malice and in the reasonable belief that the member's action is warranted by law is not subject to civil liability.

§ 32-4203 Board; powers and duties

A. The board shall:

1. Evaluate the qualifications of applicants for licensure.

2. Designate at least one national examination that it requires applicants to pass. The examination must be available to a graduating massage therapy or bodywork therapy student within ninety days before the student's expected graduation date. The board shall require that an examination be processed and the results returned to the board within thirty days after the examination is administered. If, by October 20, 2005, the testing agency administering the examination fails or is unable to comply with the requirements of this paragraph, the board shall designate another examination for applicants to pass.

3. Issue licenses to persons who meet the requirements of this chapter.

4. Regulate the practice of massage therapy by interpreting and enforcing this chapter.

5. Establish education requirements for licensees and applicants, including identifying board-recognized schools and continuing education programs and assessing the continuing competence of licensees.

6. Adopt rules for ethical and professional conduct to govern the practice of massage therapy in this state.

7. Adopt rules to enforce this chapter.

8. Meet at least once each quarter in compliance with the open meeting requirements of title 38, chapter 3, article 3.1 and keep an official record of these meetings.

9. At its first regular meeting after the start of each calendar year, elect officers from among its members as necessary to accomplish board business.

10. Provide for the timely orientation and training of new professional and public appointees to the board regarding board licensing and disciplinary procedures, this chapter, board rules and board procedures.

11. Maintain a current list of all licensees that includes the licensee's name, current business address and telephone number and license number and that is regularly accessible in electronic format to public officials and agencies to verify the license status of licensees in this state.

12. Enter into contracts for services necessary to enforce this chapter.

13. Publish, at least annually, or make available for copying or reproduction in any format, final disciplinary actions taken against a licensee.

B. The board may:

1. Accept and spend federal monies and private grants, gifts, contributions and devises to assist in carrying out the purposes of this chapter. These monies do not revert to the state general fund at the end of a fiscal year.

2. Administer oaths and affirmations, subpoena witnesses, take evidence and require the production of documents, records or information, either kept in original form or electronically stored or recorded, or other items relevant to a matter within the jurisdiction of the board.

3. For initial licensure, require a criminal background check, including the fingerprinting of every applicant for licensure, to assist the board in determining whether grounds exist to deny a license.

§ 32-4204 Executive director; personnel; duties; compensation; immunity

A. Subject to title 41, chapter 4, article 4 and section 32-3253, the executive director of the board of behavioral health examiners shall serve as the executive director of the board of massage therapy. The executive director may not be a member of the board of massage therapy and may not have any financial interests in the practice of massage therapy or the training of massage therapists. The board of massage therapy may authorize the executive director to represent the board of massage therapy and to vote on behalf of the board of massage therapy at meetings of national organizations of which the board of massage therapy is a dues-paying member.

B. The executive director and other board staff are eligible to receive compensation as determined pursuant to section 38-611.

C. The executive director or the executive director's designee shall:

1. Keep a record of the proceedings of the board.

2. Collect all monies due and payable to the board.

3. Deposit monies received by the board as prescribed by section 32-4205.

4. Prepare bills for authorized expenditures of the board and obtain warrants from the director of the department of administration for payment of bills.

5. Administer oaths.

6. Act as custodian of the seal, books, minutes, records and proceedings of the board.

7. At the request of the board, do and perform any other duty not prescribed for the executive director elsewhere in this chapter.

D. The executive director shall attend all committee hearings of the house of representatives and senate health and human services committees, or their successor committees, relating to the auditor general's follow-up reports regarding the board's implementation status of the auditor general's performance audit and sunset review recommendations.

E. Subject to title 41, chapter 4, article 4, the board may employ other personnel as it deems necessary to carry out the purposes of this chapter.

F. The executive director and any person acting pursuant to the executive director's direction are personally immune from civil liability for all actions taken in good faith pursuant to this chapter.

§ 32-4205 Board of massage therapy fund

(L24, Ch. 222, sec. 51. Eff. until 7/1/28)

A. The board of massage therapy fund is established. The board shall administer the fund. The board shall deposit, pursuant to sections 35-146 and 35-147, fifteen percent of all monies collected pursuant to this chapter in the state general fund and deposit the remaining eighty-five percent of the monies in the board of massage therapy fund.

B. Monies deposited in the board of massage therapy fund are subject to section 35-143.01.

§ 32-4205 (Version 2) Board of massage therapy fund

(L24, Ch. 222, sec. 52. Eff. 7/1/28)

A. The board of massage therapy fund is established. The board shall administer the fund. The board shall deposit, pursuant to sections 35-146 and 35-147, ten percent of all monies collected pursuant to this chapter in the state general fund and deposit the remaining ninety percent of the monies in the board of massage therapy fund.

B. Monies deposited in the board of massage therapy fund are subject to section 35-143.01.

Article 2 Licensure

§ 32-4221 Licensure; persons and activities not required to be licensed

A. Beginning July 1, 2005, a person who wishes to engage in the practice of massage therapy must be licensed pursuant to this chapter and may submit an application for licensure pursuant to this chapter not sooner than the date prescribed by the board.

B. This chapter does not apply to:

1. A health care professional who is licensed pursuant to this title and who practices within the scope of that person's license if that person does not claim to be a massage therapist or a bodywork therapist.

2. A person who is pursuing a course of study leading to a degree as a massage therapist in a professional education program that is approved by the board if all of the following apply:

(a) The person is satisfying supervised clinical education requirements related to the person's massage therapy education while under the direct supervision of a licensed massage therapist.

(b) The person is practicing in an education setting in this state that has been approved by the state board for private postsecondary education.

(c) The person is practicing in an establishment, location or setting that complies with applicable municipal and county ordinances.

(d) All persons who are present in the room during the delivery of massage services, other than a student and the customer, are licensed pursuant to this chapter or are health professionals as defined in section 32-3201.

3. A massage therapist who resides and is employed in another jurisdiction and who possesses the qualifications for licensure in this state if that person is performing massage therapy in this state in connection with teaching or is participating in an educational seminar.

4. The practice of massage therapy by a person who is employed by the government of the United States while the person is engaged in the performance of duties prescribed by the laws and regulations of the United States.

5. When the customer is fully clothed, the practice of movement educators, such as dance therapists or teachers, yoga teachers, personal trainers, martial arts instructors and movement repatterning practitioners.

6. When the customer is fully clothed, the practice of techniques that are specifically intended to affect the human energy field.

C. A health care professional who is licensed pursuant to this title and who practices within the scope of that person's license is not required to be licensed pursuant to this chapter.

D. This chapter does not require a person acting under the supervision of a person licensed pursuant to this title and permitted by this title to perform functions under the direction or supervision of that licensee to hold a license pursuant to this chapter.

§ 32-4222 Qualifications for licensure

A. An applicant for a license as a massage therapist shall:

1. Be at least eighteen years of age.

2. Be a citizen or legal resident of the United States.

3. Satisfy the requirements of section 32-4224.

4. Receive either a high school diploma or general equivalency diploma or a similar document or certificate or submit proof that the applicant has passed an ability to benefit examination recognized by the United States department of education.

5. Pay the fees established pursuant to section 32-4227.

6. Within five years preceding the date of the application for initial licensure, not have been convicted of a misdemeanor involving prostitution or solicitation or another similar offense involving moral turpitude that has a reasonable relationship to the practice of massage therapy.

7. Within the preceding five years, not have voluntarily surrendered a license under section 32-4254 or not have had a license to practice massage therapy or another similar license revoked by a political subdivision of this state or a regulatory agency in another jurisdiction in the United States for an act that occurred in that jurisdiction and that would be subject to discipline pursuant to this chapter.

8. Not be currently under investigation, suspension or restriction by a political subdivision of this state or a regulatory agency in another jurisdiction in the United States for an act that occurred in that jurisdiction and that would be subject to discipline pursuant to this chapter. If the applicant is under investigation by a regulatory agency in another jurisdiction, the board shall suspend the application process and may not issue or deny a license to the applicant until the investigation is resolved.

9. For initial licensure, submit a full set of fingerprints to the board for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation. The board may charge the cost of each criminal background check to the applicant.

10. Beginning January 1, 2023, possess a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1 for initial licensure, license renewal, a temporary license or license reinstatement pursuant to this chapter.

B. In addition to the requirements of subsection A of this section, an applicant for licensure as a massage therapist shall either:

1. Have successfully completed a course of study of massage therapy or bodywork therapy consisting of a minimum of five hundred classroom and clinical hours of supervised instruction at a board recognized school in this state that is accredited by an agency recognized by the secretary of the United States department of education.

2. Have done both of the following:

(a) Successfully completed a course of study in massage therapy or bodywork therapy consisting of a minimum of five hundred classroom and clinical hours of supervised instruction at a school in this state that is licensed by the state board for private postsecondary education or at a school outside of this state that is recognized by the board pursuant to section 32-4228.

(b) Successfully passed an examination administered by a national board accredited by the certifying agency that has been approved by the national commission on competency assurance and that is in good standing with that agency or have successfully passed an examination that is administered or approved by the board.

C. The board may adopt rules to allow it to consider the education and experience of an applicant who came from a foreign country. The board by rule may increase the minimum number of classroom hours of supervised instruction at a board recognized school that an applicant for licensure must successfully have completed.

D. If the board is satisfied that an applicant meets the requirements of this section, the board shall issue a license to the applicant.

E. Subject to the board's approval, the executive director may issue licenses to applicants who meet the requirements of this chapter.

F. The board may deny an application for a license if the applicant committed an act that would subject a person licensed under this chapter to disciplinary action.

§ 32-4223 Reciprocity

A. An applicant is eligible for reciprocal licensure if either of the following applies:

1. The applicant has been licensed in another state that has comprehensive standards for licensure for massage therapists for at least two of the last five years preceding the filing of the application with the board.

2. The applicant holds a current certification from the national certification board for therapeutic massage and bodywork or another agency that meets the standards of the national organization on competency assurance and received education and training substantially equivalent to that required by this chapter.

B. When an applicant submits an application for reciprocity, the applicant shall also submit a letter or other document acceptable to the board showing whether any jurisdiction that has previously certified or licensed the applicant has instituted disciplinary proceedings or has unresolved complaints pending against the applicant. If a disciplinary proceeding or an unresolved complaint is pending, the applicant shall not be licensed until the proceeding or the complaint has been resolved in the applicant's favor.

§ 32-4224 Application; temporary licensure

A. An applicant for licensure shall file a completed application under oath or affirmation containing the information required by the board. The applicant shall include the application fee as prescribed in section 32-4227.

B. The executive director may issue a temporary license to an applicant who files a completed application, who meets the applicable qualifications prescribed in section 32-4222, subsection A, who has satisfactorily completed a course in massage therapy or bodywork therapy at an institution that is recognized by the board pursuant to section 32-4228 and who pays the prescribed application fee. A temporary license is not effective for more than one hundred eighty days and expires on the occurrence of any one of the following:

1. Issuance of a license by the board.

2. Denial of the application by the board.

3. Expiration of the term for which the temporary license was issued.

§ 32-4225 License renewal; changes in personal information; notification; continuing education

A. Except as provided in section 32-4301, a license issued pursuant to this chapter is subject to renewal every other year on the licensee's birthday and expires unless renewed.

B. The executive director shall notify each licensee at least sixty days before expiration of the license and may renew the license on receipt of a completed renewal application.

C. Each licensee is responsible for reporting to the board a name change and changes in business and home addresses and phone numbers within ten days after any change.

D. Each licensee shall notify the board in writing within ten days after the issuance of a final order, judgment or conviction of a felony or other offense involving moral turpitude or prostitution, solicitation or any other similar offense.

E. When a licensee renews a license, the licensee must provide the board with an affirmation of the successful completion of at least twenty-four hours of continuing education in the practice of massage therapy, as approved by the board, during the immediately preceding two years.

§ 32-4226 Renewal of an expired license; reinstatement of a lapsed license

A. Except as provided in section 32-4301, the board may renew an expired license on payment of a renewal fee and a delinquency fee and on proof that the applicant continues to meet all requirements for continuing competency and continuing education established by the board.

B. The board may reinstate a lapsed license on payment of a renewal fee and a reinstatement fee and on proof that the applicant continues to meet all requirements for continuing competency and continuing education established by the board.

C. If a person's license has lapsed for more than three consecutive years, that person shall reapply for a license and pay all applicable fees. The person shall also demonstrate to the board's satisfaction competency in the practice of massage therapy or shall serve an internship under a restricted license or take remedial courses as determined by the board, or both, at the board's discretion. The board may also require the applicant to take an examination.

§ 32-4227 Fees

A. The board shall establish and collect nonrefundable fees that do not exceed the following:

1. To apply for an original license, two hundred fifty dollars.

2. To renew a license, two hundred fifty dollars.

3. To reinstate a lapsed license, two hundred fifty dollars.

4. To renew a license after the expiration date of the license, a delinquency fee of one hundred twenty-five dollars.

5. For each duplicate license, fifty dollars.

6. For copying records, documents, letters, minutes, applications and files, twenty-five cents per page.

B. The board shall charge additional fees for services not required to be provided by this chapter but that the board determines are necessary and appropriate to carry out this chapter. The fees shall not exceed the actual cost of providing these services.

§ 32-4228 Massage therapy schools; recognition

A. The board shall recognize a school of massage therapy located in this state if it is approved by the state board for private postsecondary education, is accredited to offer massage therapy education by an agency recognized by the secretary of the United States department of education or is a career technical education district program that is offered by a career technical education district as defined in section 15-391.

B. The board shall recognize a school of massage therapy located in another state or a Canadian province if it is accredited or approved by an agency similar to the state board for private postsecondary education or it is accredited to offer massage therapy education by an agency recognized by the secretary of the United States department of education.

C. Each school of massage therapy that is located in this state and that receives approval from the state board for private postsecondary education shall report to the board of massage therapy:

1. The physical address of the school and each instructional facility maintained or operated by the school.

2. All faculty and instructional staff, and all additions to or deletions from the faculty and staff.

D. The board shall maintain a list of recognized schools.

Article 3 Regulation

§ 32-4251 Lawful practice

A. A massage therapist shall refer a person requiring a treatment for a condition outside the scope of practice of a massage therapist to one or more appropriate health care practitioners if the massage therapist has reasonable cause to believe symptoms or conditions are present that require services beyond the scope of practice of massage therapy or if massage therapy is contraindicated.

B. A massage therapist shall adhere to the recognized standards and ethics of the massage therapy profession and as further established by rule.

C. This chapter does not authorize a massage therapist to practice any other profession regulated under this title and does not expand the scope of practice of any health care provider who is not licensed pursuant to this chapter but who is licensed pursuant to this title.

§ 32-4252 Use of title; restrictions; violation; classification

A. No person may claim to be a massage therapist or use any terms or references in any advertisement, statement or publication to suggest to the public that the person is a massage therapist unless that person is a massage therapist licensed pursuant to this chapter.

B. The board may adopt rules to implement this section including the identification of references that may be used only by persons licensed under this chapter or exempt from licensure under this chapter.

C. A person who is not licensed pursuant to this chapter shall not use any of these titles or abbreviations or any other abbreviation or other words, letters, signs or figures to indicate that the person using the title is licensed pursuant to this chapter.

D. An establishment or business that employs or contracts with persons who are licensed under this chapter shall not advertise on behalf of those persons unless the services are provided by or under the direct supervision of a person licensed pursuant to this chapter.

E. A person or entity that violates this section is guilty of a class 1 misdemeanor.

§ 32-4253 Disciplinary action; grounds; definitions

A. The following are grounds for disciplinary action:

1. Failing to meet or maintain the requirements for an original license under section 32-4222, subsection A.

2. Using fraud, deceit or misrepresentation in obtaining or attempting to obtain a license or the renewal or reinstatement of a license.

3. Using drugs or intoxicating liquors to an extent that affects professional competency.

4. Being convicted of a felony or other offense involving moral turpitude or any conviction for prostitution, solicitation or another similar offense. A conviction by a court of competent jurisdiction is conclusive evidence of the commission of the crime.

5. Being found mentally incompetent by a court of competent jurisdiction until proof of recovery from the condition can be established.

6. Engaging in any act or practice in violation of this chapter or any board rule or aiding, abetting or assisting any other person in the violation of these provisions or rules.

7. Having a license or certificate revoked or suspended or any other disciplinary action taken or an application for licensure or certification refused, revoked or suspended by the proper authorities of another state, territory or country.

8. Committing an act of malpractice, gross negligence or incompetency.

9. Practicing as a licensee under this chapter without an active license.

10. Engaging in conduct that could result in harm or injury to the public.

11. Using fraud, deceit or misrepresentation when communicating with the general public, health care professionals or other business professionals.

12. Falsely holding out oneself as licensed or certified in any discipline of massage therapy without successfully completing training approved by the board in that specialty.

13. Practicing or offering to practice beyond the scope of the practice of massage therapy.

14. Engaging in the performance of substandard care by a massage therapist due to a deliberate or negligent act or failure to act, regardless of whether actual injury to the person cared for is established.

15. Engaging in sexual activity with a client.

16. Failing to adhere to the recognized standards and ethics of the massage therapy profession.

17. Charging unreasonable or fraudulent fees for services performed or not performed.

18. Aiding or abetting a person who is not licensed in this state and who directly or indirectly performs activities requiring a license.

19. Failing to report to the board any act or omission of a licensee or applicant or any other person who violates this chapter.

20. Interfering with an investigation or disciplinary proceeding by willful misrepresentation of facts or by the use of threats or harassment against any person to prevent that person from providing evidence in a disciplinary proceeding or any legal action.

21. Promoting an unnecessary device, treatment or service for the financial gain of the massage therapist or of a third party.

22. Providing massage therapy services that are in any way linked to the financial gain of a referral source.

23. Violating this chapter, board rules or a written order of the board.

B. For the purposes of this section:

1. "Breast" means any portion of the female breast below a point immediately above the top of the areola.

2. "Sexual activity" means any of the following:

(a) Sexual conduct.

(b) Offering to engage in sexual conduct.

(c) Making sexual advances, requesting sexual favors or engaging in other verbal conduct or physical contact of a sexual nature with a client.

(d) Intentionally viewing a completely or partially disrobed massage therapy client in the course of treatment if the viewing is not related to treatment under current practice standards and is intended to appeal to the prurient interest of the massage therapy client or the massage therapist.

(e) Massaging, touching or applying any instrument or device by a licensee in the course of practicing or engaging in massage therapy to the breasts of a female client unless the client requests breast massage and signs a written consent form. If the client is a minor, the consent form must include the signature of the client's parent or legal guardian authorizing the procedure and outlining the reason for the procedure before the procedure is performed.

(f) Asking or directing a massage therapy client or prospective client to touch the client's own anus or genitals or to touch the anus, genitals or female breasts of any other person.

(g) Asking or directing a massage therapy client or prospective client to expose the client's own anus or genitals to the massage therapist or any other person with the intention of appealing to the prurient interest of the massage therapy client or the massage therapist.

(h) Exposing the massage therapist's anus or genitals to a client.

(i) Exposing her breasts to a client.

3. "Sexual conduct" means any direct or indirect touching, fondling or manipulating of any part of the genitals or anus by any part of the body or by any object or causing a person to engage in that conduct.

§ 32-4254 Investigative powers; emergency action; disciplinary proceedings; formal interview; hearing; civil penalty

A. The board on its own motion may investigate any evidence that appears to show that a licensee is or may be incompetent or is or may be subject to discipline under this chapter. On written request of a complainant, the board shall review a complaint and take any action it deems appropriate. The board or the executive director shall notify the licensee as to the content of the complaint as soon as reasonable. A licensee shall, and any other person may, report to the board any information the person may have that appears to show grounds for disciplinary action against a licensee. Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages. If requested, the board shall not disclose the name of a person who supplies information regarding a licensee's drug or alcohol impairment. It is an act of unprofessional conduct for any licensee to fail to report as required by this section.

B. If the board finds, based on the information it receives under subsection A of this section, that the public health, safety or welfare requires emergency action and incorporates a finding to that effect in its order, the board may restrict, limit or order a summary suspension of a license pending proceedings for revocation or other action. If the board takes action pursuant to this subsection, it shall also serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing before the board or an administrative law judge within sixty days.

C. If, after completing its investigation, the board finds that the information provided pursuant to subsection A of this section is not of sufficient seriousness to merit disciplinary action against the license of the licensee, the board or a board committee may take any of the following nondisciplinary actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. File an advisory letter. The licensee may file a written response with the board within thirty days after receiving the advisory letter.

3. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

D. If the board finds that it can take rehabilitative or disciplinary action without the presence of the licensee at a formal interview, it may enter into a consent agreement with the licensee to limit or restrict the licensee's practice or to rehabilitate the licensee, protect the public and ensure the licensee's ability to safely engage in the practice of massage therapy. The board may also require the licensee to successfully complete a board approved rehabilitative, retraining, continuing education or assessment program.

E. If, after completing its investigation, the board believes that the information is or may be true, it may request a formal interview with the licensee. If the licensee refuses the invitation for a formal interview or accepts and the results indicate that grounds may exist for revocation or suspension of the licensee's license for more than twelve months, the board shall issue a formal complaint and order that a hearing be held pursuant to title 41, chapter 6, article 10. If, after completing a formal interview, the board finds that the protection of the public requires emergency action, it may order a summary suspension of the license pending formal revocation proceedings or other action authorized by this section.

F. If, after completing the formal interview, the board finds the information provided under subsection A of this section is not of sufficient seriousness to merit suspension for more than twelve months or revocation of the license, it may take one or more of the following actions:

1. Dismiss if, in the opinion of the board, the complaint is without merit.

2. File an advisory letter. The licensee may file a written response with the board within thirty days after the licensee receives the advisory letter.

3. File a letter of reprimand.

4. Issue a decree of censure. A decree of censure is an official action against the licensee's license.

5. Fix a period and terms of probation best adapted to protect the public health and safety and to rehabilitate or educate the licensee concerned. Probation may include temporary suspension not to exceed twelve months or restriction of the licensee's license to practice massage therapy. If a licensee fails to comply with the terms of probation, the board shall serve the licensee with a written notice that states that the licensee is subject to a formal hearing based on the information considered by the board at the formal interview and on any other acts or conduct alleged to be in violation of this chapter or rules adopted pursuant to this chapter, including noncompliance with the terms of probation, a consent agreement or a stipulated agreement.

6. Enter into an agreement with the licensee to restrict or limit the licensee's practice in order to rehabilitate, retrain or assess the licensee, protect the public and ensure the licensee's ability to safely engage in the practice of massage therapy.

7. Order the payment of restitution, including an order to repay fees paid by a massage therapy client and for the cost of the investigation.

8. Issue a nondisciplinary order requiring the licensee to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.

G. If the board finds that the information provided in subsection A or E of this section warrants suspension or revocation of a license issued pursuant to this chapter, it shall initiate formal proceedings pursuant to title 41, chapter 6, article 10. If after a formal proceeding the board finds that a licensee has been convicted of prostitution, solicitation or another similar offense, the board shall revoke the license.

H. A licensee shall respond in writing to the board within thirty days after notice of the hearing is served. The board may consider a licensee's failure to respond within this time as an admission by default to the allegations stated in the complaint. The board may then take any disciplinary action allowed pursuant to this chapter without conducting a hearing.

I. In a formal interview pursuant to subsection E of this section or in a hearing pursuant to subsection G of this section, the board in addition to any other action may impose a civil penalty of not more than ten thousand dollars for each violation of this chapter or a rule adopted pursuant to this chapter.

J. An advisory letter is a public document.

K. A licensee who after a formal hearing is found by the board to be subject to discipline pursuant to this chapter is subject to censure, probation or restitution as provided in this section, suspension or revocation of license or any combination of these, including a stay of action, for a period of time or permanently and under conditions the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge the costs of formal hearings to a licensee whom it finds to be in violation of this chapter.

L. If the board, during the course of any investigation, determines that a criminal violation involving the practice of massage therapy may have occurred, it shall make the evidence of a violation available to the appropriate criminal justice agency for its consideration.

M. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies it collects from civil penalties paid pursuant to this section in the state general fund.

N. Notice of a complaint and hearing is effective by a true copy of it being sent by certified mail to the licensee's last known address of record in the board's files. Notice of the complaint and hearing is complete on the date of its deposit in the mail. The board shall begin a formal hearing within one hundred twenty days after that date.

O. The board may accept the surrender of a license from a person who admits in writing to any of the following:

1. Being unable to safely engage in the practice of massage therapy.

2. Having committed an act subject to discipline pursuant to this chapter.

3. Having violated this chapter or a board rule.

P. In determining the appropriate disciplinary action under this section, the board shall consider all previous nondisciplinary and disciplinary actions against a licensee.

§ 32-4255 Unlawful practice; classification; civil penalties; injunctive relief

A. It is unlawful for any person to practice or in any manner to claim to practice massage therapy or to advertise massage therapy services unless that person is licensed pursuant to this chapter. A person who engages in an activity requiring a license pursuant to this chapter or who uses any word, title or representation in violation of section 32-4252 that implies that the person is licensed to engage in the practice of massage therapy, or who advertises massage therapy services without being licensed pursuant to this chapter is guilty of a class 1 misdemeanor.

B. The board may investigate any person to the extent necessary to determine if the person is engaged in the unlawful practice of massage therapy. If an investigation indicates that a person may be practicing massage therapy unlawfully, the board shall inform the person of the alleged violation. The board may refer the matter for prosecution regardless of whether the person ceases the unlawful practice of massage therapy.

C. The board, through the appropriate county attorney or city attorney or the office of the attorney general, may apply for injunctive relief in any court of competent jurisdiction or enjoin any person from committing any act in violation of this chapter. Injunctive proceedings are in addition to all penalties and other remedies prescribed in this chapter.

D. A person who aids or requires another person to directly or indirectly violate this chapter or board rules, who permits a license to be used by another person or who acts with the intent to violate this chapter or board rules is subject to a civil penalty of not more than one thousand dollars for each violation and not more than five thousand dollars for each subsequent violation. The board shall hold a hearing before it imposes this penalty.

E. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies it collects from civil penalties pursuant to this section in the state general fund.

§ 32-4256 Reporting violations; immunity

A. A person, licensee, corporation, educational institution, health care professional or health care facility and state or local governmental agencies must report to the board any conviction, determination or finding that a licensee has committed an act that constitutes grounds for disciplinary action pursuant to section 32-4253.

B. A person is immune from civil liability, whether direct or derivative, for providing information in good faith to the board pursuant to subsection A of this section.

C. The board shall not disclose the identity of a person who provides information unless this information is essential to proceedings conducted pursuant to sections 32-4254 and 32-4255 or unless required by a court.

§ 32-4257 Third party reimbursement

This chapter does not require direct third party reimbursement to any person licensed pursuant to this chapter.

§ 32-4258 Regulation by county or municipality

A. This chapter does not prohibit a county or municipality from adopting and enforcing regulations affecting the establishments, locations or settings in which individuals, entities or businesses engage in the practice of massage therapy.

B. A county or municipality shall not impose regulations that are inconsistent with this chapter.

§ 32-4259 Access to information; confidential information; display of license

A. Any person has access to the following information:

1. A list of licensees that includes the licensee's place of practice, license number, date of license expiration and status of license.

2. A list of official actions taken by the board.

B. Unless they are the only address and telephone number available, the home address and home telephone number of a massage therapist are not public records and the board shall keep this information confidential.

C. Except in the course of a board investigation, information pertaining to the relationship between the massage therapist and a person treated by the massage therapist is confidential and may not be communicated to a third party who is not involved in that person's care without that person's prior written consent. If the person is a minor, the person's parent or guardian must also give written consent to these communications.

D. The massage therapist must divulge to the board information it requires in connection with any investigation, public hearing or proceeding, including information that is otherwise confidential pursuant to this section.

E. The privilege established by this section does not extend to cases in which the massage therapist has a duty to report information as required by law.

F. The board shall provide access to the application, license, investigation and discipline files maintained by the board to law enforcement agencies and other regulatory agencies of this state.

G. Each licensee shall display a copy of the licensee's license or current renewal verification in an establishment, location or setting that is accessible to public view at each location at which the licensee practices massage therapy.

§ 32-4260 Advertising requirements; civil penalty; definitions

A. A massage therapist or massage therapy business shall not advertise massage therapy services unless the advertisement includes either:

1. The massage therapy license number of the massage therapist if the advertisement is for the services of a specific massage therapist.

2. The business license number of at least one business license held by the massage therapy business if the advertisement does not offer the services of a specific massage therapist.

B. A massage therapist or massage therapy business shall retain on file, for at least one year, proof of the age of any massage therapist whose services are offered in any advertisement of massage therapy services.

C. A massage therapist or massage therapy business that violates this section is subject to a civil penalty of:

1. Five hundred dollars for a first violation.

2. One thousand five hundred dollars for a second violation.

3. Five thousand dollars for a third or subsequent violation.

D. The attorney general, county attorney or city or town attorney may bring an action to enforce this section.

E. The court shall deposit any civil penalties collected pursuant to subsection C of this section into the human trafficking victims assistance fund established by section 41-114.

F. It is an affirmative defense in a civil action for a violation of subsection A of this section that the massage therapist or massage therapy business possessed a valid license at the time the advertisement was published.

G. It is an affirmative defense in a civil action for a violation of subsection B of this section that the massage therapist whose services were offered in an advertisement for massage therapy services was eighteen years of age or older at the time the advertisement was published.

H. For the purposes of this section:

1. "Advertisement" means any message in any medium that offers or solicits any person to retain the services of the massage therapist or massage therapy business depicted in the advertisement.

2. "Massage therapy business" means a person or business association that furnishes, offers to furnish or advertises the furnishing of massage therapists as one of its primary business purposes for any fee, tip or other consideration.

Chapter 43 Board Licensure, Certification and Registration

Article 1 General Provisions

§ 32-4301 License, certificate or registration expiration; military active duty; one hundred eighty-day extension

A. Except as otherwise provided in this section, a license, certificate or registration that is issued pursuant to this title to any member of the national guard or the United States armed forces reserves shall not expire while the member is serving on federal active duty and shall be extended one hundred eighty days after the member returns from federal active duty, provided that the member, or the legal representative of the member, notifies the license, certificate or registration issuing authority of the federal active duty status of the member. A license, certificate or registration that is issued pursuant to this title to any member serving in the regular component of the United States armed forces shall be extended one hundred eighty days from the date of expiration, provided that the member, or the legal representative of the member, notifies the license, certificate or registration issuing authority of the federal active duty status of the member.

B. A license, certificate or registration that is issued pursuant to this title to any member of the national guard, the United States armed forces reserves or the regular component of the United States armed forces shall not expire and shall be extended one hundred eighty days from the date the military member is able to perform activities necessary under the license, certificate or registration if the member both:

1. Is released from active duty service.

2. Suffers an injury as a result of active duty service that temporarily prevents the member from being able to perform activities necessary under the license, certificate or registration.

C. If the license, certificate or registration is renewed during the applicable extended time period after the member returns from federal active duty, the member is responsible only for normal fees and activities relating to renewal of the license, certificate or registration and shall not be charged any additional costs such as late fees or delinquency fees.

D. The member, or the legal representative of the member, shall present to the authority issuing the license, certificate or registration a copy of the member's official military orders, a redacted military identification card or a written verification from the member's commanding officer before the end of the applicable extended time period in order to qualify for the extension.

E. This section does not apply to licenses that are issued pursuant to chapter 10 of this title if a person other than the person who is a member of the national guard, the United States armed forces reserves or the regular component of the United States armed forces is authorized to renew the license.

F. A license or certificate that is issued pursuant to chapter 36 of this title to any member of the national guard, the United States armed forces reserves or the regular component of the United States armed forces shall be placed in active status for ninety days after the member returns from federal active duty, provided that the member, or the legal representative of the member, notifies the department of insurance and financial institutions of the federal active duty status of the member.

§ 32-4302 Out-of-state applicants; residents; military spouses; licensure; certification; exceptions; notice

A. Notwithstanding any other law, an occupational or professional license or certificate shall be issued, in the discipline applied for and at the same practice level as determined by the regulating entity, pursuant to this title to a person who establishes residence in this state or without an examination to a person who is married to an active duty member of the armed forces of the United States and who is accompanying the member to an official permanent change of station to a military installation located in this state if all of the following apply:

1. The person is currently licensed or certified in at least one other state in the discipline applied for and at the same practice level as determined by the regulating entity and the license or certification is in good standing in all states in which the person holds a license or certification.

2. The person has been licensed or certified by another state for at least one year.

3. When the person was licensed or certified by another state there were minimum education requirements and, if applicable, work experience and clinical supervision requirements in effect and the other state verifies that the person met those requirements in order to be licensed or certified in that state.

4. The person previously passed an examination required for the license or certification if required by the other state.

5. The person has not had a license or certificate revoked and has not voluntarily surrendered a license or certificate in any other state or country while under investigation for unprofessional conduct.

6. The person has not had discipline imposed by any other regulating entity. If another jurisdiction has taken disciplinary action against the person, the regulating entity shall determine if the cause for the action was corrected and the matter resolved. If the matter has not been resolved by that jurisdiction, the regulating entity may not issue or deny a license until the matter is resolved.

7. The person does not have a complaint, allegation or investigation pending before another regulating entity in another state or country that relates to unprofessional conduct. If an applicant has any complaints, allegations or investigations pending, the regulating entity in this state shall suspend the application process and may not issue or deny a license to the applicant until the complaint, allegation or investigation is resolved.

8. The person pays all applicable fees.

9. The person does not have a disqualifying criminal history as determined by the regulating entity pursuant to section 41-1093.04.

B. This section does not prevent a regulating entity under this title from entering into a reciprocity agreement with another state or jurisdiction for persons married to active duty members of the armed forces of the United States, except that the agreement may not allow out-of-state licensees or certificate holders to obtain a license or certificate by reciprocity in this state if the applicant has not met standards that are substantially equivalent to or greater than the standards required in this state as determined by the regulating entity on a case-by-case basis.

C. Except as provided in subsection A of this section, a regulating entity that administers an examination on laws of this state as part of its license or certificate application requirement may require an applicant to take and pass an examination specific to the laws of this state.

D. A person who is licensed pursuant to this title is subject to the laws regulating the person's practice in this state and is subject to the regulating entity's jurisdiction.

E. This section does not apply to:

1. A license or registration certificate that is issued pursuant to chapter 24 or 26 of this title.

2. Requirements for a fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1.

3. Criteria for a license, permit or certificate of eligibility that is established by an interstate compact.

4. The ability of a regulating entity under this title to require an applicant to submit fingerprints in order to access state and federal criminal records information for noncriminal justice purposes.

F. A license or certificate issued pursuant to this section is valid only in this state and does not make the person eligible to be part of an interstate compact. A regulating entity under this title may determine eligibility for an applicant to be licensed or certified under this section if the applicant is not part of an interstate compact.

G. A regulating entity under this title shall prominently print the following notice on all license and certificate applications and regulating entity websites:

Pursuant to section 32-4302, Arizona Revised Statutes, a person shall be granted an occupational or professional license or certificate if the person has been licensed or certified in another state for at least twelve months, the license or certificate is in the same discipline and at the same practice level as the license or certificate for which the person is applying in this state and the person meets other conditions prescribed by section 32-4302, Arizona Revised Statutes.

H. Before any regulating entity takes any official action to deny a professional or occupational license that a person applies for pursuant to this section, the regulating entity shall submit the application and the reason for denial to the governor for review. The regulating entity shall notify the governor of any required time frames for approval or denial of the license application by the regulating entity.

I. Beginning July 1, 2022, all regulating entities that are required to issue occupational or professional licenses pursuant to this section shall track information about applications received in the format to be determined by the governor and annually report that information to the governor.

J. For the purposes of subsections H and I of this section, "regulating entity":

1. Means all executive departments, agencies and offices and all state boards and commissions.

2. Does not include:

(a) A state agency that is headed by a single elected state official.

(b) The corporation commission.

(c) Any board or commission established by ballot measure at or after the November 1998 general election.

(d) The judiciary.

§ 32-4303 Military education, training and experience

Notwithstanding any other law, the education, training or experience requirements for a license, certificate or registration issued pursuant to this title are completely or partially satisfied, as determined by the regulating entity, on presentation of satisfactory evidence that the applicant received substantially equivalent education, training or experience as a member of the United States armed forces or any national guard or other reserve component. The regulating entity shall work in conjunction with the department of veterans' services to access information regarding the applicant's military education, training or experience.

§ 32-4304 Occupational and professional licenses; websites; reporting; definition

A. A regulating entity that issues occupational or professional licenses shall:

1. Prominently post on its website home page all current state policies that ease licensing burdens and the exact steps applicants must complete to receive their license using such policies. Policies that ease licensing burdens include the following:

(a) Universal recognition of out-of-state licenses.

(b) Availability of temporary licenses.

(c) Fee waivers.

(d) Examination exemptions.

(e) Allowing an applicant to substitute military education or experience for licensing requirements.

2. Have a designated area on its website home page that includes licensing information specifically for military spouses, active duty service members and veterans and all policies that make it easier for the applicant groups to receive a license.

3. Display all information required by paragraphs 1 and 2 of this subsection in a location that is easy to locate and shall use language that is clear and concise. A website home page feature may link to an internal webpage with more information if a regulating entity deems it necessary.

4. Beginning July 1, 2022, track whether each applicant is a veteran or military spouse and shall annually report the information gathered pursuant to this paragraph to the governor.

B. For the purposes of this section, "regulating entity":

1. Means all executive departments, agencies and offices and all state boards and commissions.

2. Does not include:

(a) A state agency that is headed by a single elected state official.

(b) The corporation commission.

(c) Any board or commission established by ballot measure at or after the November 1998 general election.

(d) The judiciary.

Chapter 45 Regulation of Out-of-State Businesses and Out-of-State Employees During a Disaster

Article 1 General Provisions

§ 32-4501 Definitions

In this chapter, unless the context otherwise requires:

1. "Declared disaster" means a state of emergency declared by the governor, a presidential declaration of a federal major disaster or emergency in this state or a disaster or emergency event in this state that is designated by the division of emergency management and that requires disaster recovery under this chapter.

2. "Disaster period" means a period that is within ten calendar days of the date of issuance of the declared disaster and that extends for a period of sixty calendar days after the end of the declared disaster or any longer period authorized by the governor.

3. "Disaster recovery" means repairing, renovating, installing, building, rendering services or other business activities that relate to infrastructure that has been damaged, impaired or destroyed by a declared disaster.

4. "Infrastructure" means property and equipment owned or used by communications networks, electric generation, transmission and distribution systems and gas distribution systems, water pipelines, public roads and bridges and related support facilities that service multiple customers or citizens of this state and includes buildings, offices, lines, poles, pipes, structures and equipment.

5. "Out-of-state business" means a business entity that existed as an operating entity before the declared disaster, including an affiliate solely by common ownership of a registered business, whose services are requested by a registered business in this state or by the state or a local government for the purpose of performing disaster recovery in this state and that meets all of the following conditions:

(a) Is not present in this state.

(b) Does not conduct business in this state.

(c) Does not have or maintain any state or local registrations, licenses or certifications in this state.

(d) Does not make any tax filings in this state.

6. "Out-of-state employee" means an employee who does not work in this state except for performing disaster recovery during a disaster period.

7. "Registered business" means a business entity that is currently registered to do business in this state and that was a registered business before the declared disaster.

§ 32-4502 Temporary relief from registration, licensing and certification requirements; disaster recovery; notice

A. An out-of-state business and an out-of-state employee that are in this state on a temporary basis solely for performing disaster recovery from a declared disaster during a disaster period are not subject to any state or local registration, licensing or certification requirements related to the performance of the disaster recovery for the disaster period if the out-of-state business is in substantial compliance with all applicable regulatory and licensing requirements in its state of domicile and the out-of-state employee is in substantial compliance with all applicable regulatory and licensing requirements in the employee's state of residence.

B. On request, an out-of-state business that enters this state shall provide notice to the division of emergency management that it is in this state for the purpose of performing disaster recovery. The notice shall include the business's name, state of domicile, principal business address, federal tax identification number, date of entry and contact information.

C. On request, a registered business shall provide the notice required by subsection B of this section for any out-of-state business affiliate that enters this state. The notice shall include the contact information for the registered business.

Chapter 46 Art Therapists

Article 1 General Provisions

§ 32-4601 Art therapists; title; violation

A. A person may not assume or use the title or designation of "art therapist" unless the person holds an active national registration in art therapy with the art therapy credentials board.

B. A violation of this section constitutes an unlawful practice under section 44-1522. The attorney general may investigate and take appropriate action as prescribed by title 44, chapter 10, article 7.

Chapter 47 Provisional Licenses for Ex-Offenders

Article 1 General Provisions

§ 32-4701 Provisional license; eligibility; report; definition

A. Unless subsection K of this section applies, a licensing authority shall have the authority to issue to an otherwise qualified applicant who has been convicted of an offense either of the following:

1. The regular license for which the applicant applied.

2. A provisional license.

B. The provisional license shall be valid for a term of not more than one year as specified by the licensing authority by rule.

C. The licensing authority may revoke a provisional license if the provisional licensee:

1. Is charged with a new felony.

2. Commits an act or omission that causes the provisional licensee's community supervision, probation or parole to be revoked, if applicable.

3. Violates the law or rules governing the practice of the occupation for which the provisional license is issued.

D. If the licensing authority revokes a provisional license under subsection C of this section, the provisional licensee is not entitled to receive another provisional license or the regular license for which the applicant originally applied, even if otherwise qualified. The ability of such a person to subsequently obtain another such license in the future is within the discretion of the licensing authority.

E. An applicant who is on community supervision, probation or parole and who is issued a provisional license under this section shall provide to the licensing authority the name and contact information of the community supervision, probation or parole officer to whom the applicant reports. The licensing authority shall notify the community supervision, probation or parole officer that a provisional license has been issued.

F. If the licensing authority issues a regular or provisional license to an applicant and the applicant has been ordered by a court to pay restitution, the licensing authority shall notify the prosecutor that a regular or provisional license has been issued to the applicant for the purposes of recovering restitution that the applicant may owe.

G. If an applicant is employed in a licensed assisted living or skilled nursing facility, the provisional license must include a condition that the provisional licensee may only work under the direct supervision of another licensee who is not a provisional licensee, and the supervising licensee must sign a verifying affidavit.

H. If a provisional licensee was convicted of an offense that involves a violation of title 13, chapter 15 or 19 within the last ten years and if the occupation is one in which a licensee regularly enters private residences, the provisional license must include a condition that the provisional licensee only work under the direct supervision of another licensee who has no criminal record during all home visits and the supervising licensee must sign a verifying affidavit. If the offense occurred more than ten years ago, the condition is discretionary with the licensing authority. The regular license may include this condition if the licensing authority determines that the condition is warranted. The licensing authority may conduct reasonable enforcement activities to ensure this supervision condition is complied with over the course of the license term.

I. This section does not preclude a licensing authority from exercising its existing discretion to issue a license to individuals who are not covered under this section.

J. A person who is incarcerated may not apply for a provisional license until after the person's release.

K. This section does not apply to:

1. A person who is convicted of:

(a) A violent crime as defined in section 13-901.03.

(b) A violation of section 13-1403, subsection B.

(c) A sexual offense as defined in section 13-1420.

(d) Kidnapping under section 13-1304.

(e) An offense in violation of title 13, chapter 20, 21 or 22 or section 13-2310 or 13-2311 if the licensed occupation is one in which the licensee owes a fiduciary duty to a client.

2. Any occupation where the licensee would be supervising vulnerable adults as defined in section 46-451 or children.

3. Any initial or renewal license application where the applicant was convicted of committing an offense in the course of performing the duties of the occupation or a substantially similar occupation.

4. Repetitive offenders pursuant to section 13-703.

L. Each licensing authority shall submit a report on or before July 1 each year to the governor and provide a copy of this report to the secretary of state. The report shall include the following information for the previous calendar year:

1. The number of provisional license applications that were received.

2. The number of provisional licenses that were granted.

3. The number of provisional license applications that were denied.

4. The number of provisional licenses that were revoked.

M. For the purposes of this section, "licensing authority" means any agency, department, board or commission of this state that issues a license pursuant to this title, except chapter 40 of this title, for the purposes of operating a business in this state to an individual who provides a service to any person.

Chapter 48 Licensing Authorities

Article 1 Public Meetings

§ 32-4801 Public meetings; digital recordings; posting; definition

A. Each licensing authority shall:

1. In addition to the requirements prescribed in title 38, chapter 3, article 3.1, provide for a digital recording of each licensing authority meeting, except for executive sessions.

2. Post on its website the digital recording of the meeting not later than five days after the meeting and retain the recording on its website for at least three years.

3. Except as prescribed by sections 32-3214 and 41-1092.09, post on its website all final decisions, orders and actions the licensing authority takes not later than five days after the meeting and retain this information on its website for at least three years but not more than five years.

B. For the purposes of this section, "licensing authority" has the same meaning prescribed in section 32-4701.

Article 2 Nonhealth Professions and Occupations Regulatory Boards

§ 32-4821 Licensing authorities; mental health inquiry; prohibition; definition

A. A licensing authority may not include any question on an application for a license, permit, certificate or registration that requests information about whether the applicant has sought mental health assistance or received a mental health diagnosis or treatment. The licensing authority may ask if the applicant is currently under a regulatory entity's order in another state for the monitoring of a health condition, including substance abuse. The applicant is not required to respond if the monitoring is part of a confidential program.

B. For the purposes of this section, "licensing authority" means any agency, department, board or commission of this state that issues a license, permit, certificate or registration pursuant to this title to an individual who provides a service to any person. Licensing authority does not mean:

1. An entity that issues licenses pursuant to chapter 40 of this title.

2. A health profession regulatory board as defined in section 32-3201.

§ 32-4822 Renewal applications; suspension; extension; renewal fee waiver; definition

A. If a licensing authority suspends the processing of renewal applications for licensure, permitting, certification or registration:

1. All current licenses, permits, certificates and registrations that were previously issued by that licensing authority are extended through the suspension period.

2. During the suspension period, the renewal fee for current licensees, permittees, certificate holders and registrants is waived.

b. For the purposes of this section, "licensing authority":

1. Means any agency, department, board or commission of this state that issues a license, permit, certificate or registration pursuant to this title to an individual who provides a service to any person.

2. Does not mean:

(a) An entity that issues licenses pursuant to chapter 40 of this title.

(b) A health profession regulatory board as defined in section 32-3201.