South Carolina § 40-47-114 - Requiring professional competency, mental, or physical examination; request for review; obtaining records; confidentiality.

§ 40-47-114. Requiring professional competency, mental, or physical examination; request for review; obtaining records; confidentiality.

(A) If the board finds that probable cause exists that a licensee or applicant may be professionally incompetent, addicted to alcohol or drugs, or may have sustained a physical or mental disability that may render practice by the licensee or applicant dangerous to the public or is otherwise practicing in a manner dangerous to the public, the board, without a formal complaint or opportunity for hearing, may require a licensee or applicant to submit to a professional competency, mental, or physical examination by authorized practitioners designated by the board. The results of an examination are admissible in a hearing before the board, notwithstanding a claim of privilege under a contrary rule of law. A person who accepts the privilege of engaging in licensed practice in this State pursuant to this chapter, or who files an application for a license to practice pursuant to this chapter, is considered to have consented to submit to a professional competency, mental, or physical examination and to have waived all objections to the admissibility of the results in a hearing before the board upon the grounds that this constitutes a privileged communication. If a licensee or applicant fails to submit to an examination when properly directed to do so by the board, unless the failure was due to circumstances beyond the person's control, the board shall enter an order automatically suspending or denying the license pending compliance and further order of the board. A licensee or applicant who is required to submit to a professional competency, mental, or physical examination may request by the close of the next business day after receipt of the requirement a review by the administrative hearing officer. Filing a written request for a review by the administrative hearing officer does not stay the time directed in which to submit to a professional competency, mental, or physical examination, and no stay may be issued, except as provided in this section. Upon proper written request, a review hearing must be conducted within three business days of receipt of the request, unless otherwise agreed by the parties. Failure to provide a review hearing within the prescribed time stays the time required to submit to a professional competency, mental, or physical examination until a decision is issued by the administrative hearing officer. The review hearing for purposes of this section must be limited to the issues of whether the person is a licensee or applicant, whether reasonable grounds exist to require a professional competency, mental, or physical examination, and whether the licensee or applicant has been informed that failure to submit to an examination will result in the entry of an order automatically suspending or denying the license pending compliance and further order of the board. The administrative hearing officer's decision is not subject to appeal. A licensee or applicant who is prohibited from practicing pursuant to this subsection must be afforded at reasonable intervals an opportunity to demonstrate to the board the ability to resume or begin the practice with reasonable skill and safety.

(B) The board upon probable cause may obtain records relating to the professional competency or mental or physical condition of a licensee or applicant including, but not limited to, psychiatric records, which are admissible in a hearing before the board, notwithstanding any other provision of law. A person who accepts the privilege of engaging in licensed practice in this State pursuant to this chapter, or who files an application to practice pursuant to this chapter, is considered to have consented to the board obtaining these records and to have waived all objections to the admissibility of these records in a hearing before the board upon the grounds that this constitutes a privileged communication. If a licensee or applicant refuses to sign a written consent for the board to obtain these records when properly requested by the board, unless the failure was due to circumstances beyond the person's control, the board shall enter an order automatically suspending or denying the license pending compliance and further order of the board. A licensee or applicant who is prohibited from practicing under this subsection must be afforded at reasonable intervals an opportunity to demonstrate to the board the ability to resume or begin the practice of medicine with reasonable skill and safety.

(C) An order requiring a licensee or applicant to submit to a professional competency, mental, or physical examination or an order requiring the submission of records relating to the professional competency or mental or physical condition of a licensee or applicant is confidential and must not be disclosed, except to the extent necessary for the proper disposition of the matter before the board or administrative hearing officer. The fact of automatic suspension or denial of a license pending compliance and further order of the board is public information under the Freedom of Information Act. A review hearing and decision of an administrative hearing officer are confidential, unless an order automatically suspending or denying a license pending compliance and further order of the board has been issued, in which case the fact of suspension or denial of a license by the administrative hearing officer is public information under the Freedom of Information Act.

HISTORY: 2006 Act No. 385, SECTION 1.