Effective 28 Aug 2018

335.067. Intervention programs may be established by the board — purpose of program — screening — completion of program, effect of — disciplinary action for failure to complete — confidentiality. — 1. The state board of nursing may establish an intervention program and an alternative program to promote the identification, intervention, treatment, and monitoring of nurses or applicants for a nursing license who may be impaired by reason of substance abuse or the potential for substance abuse.

2. The intervention program is available, upon board discretion, to licensees and applicants for licensure who self-refer, test positive in a pre-employment or for-cause drug or alcohol screen, individuals who have pled guilty to or been found guilty of any drug offense, whether felony or misdemeanor, or individuals who have pled guilty to or been found guilty of three or more criminal offenses resulting from or related to the use of drugs or alcohol, whether a felony or misdemeanor. The program shall be a minimum of one year in duration and require random drug and alcohol testing at the participant's expense.

3. The alternative program is available, upon board discretion, to licensees and applicants for licensure who admit to having a substance use disorder. The program shall be from three to five years in duration and at a minimum require random drug and alcohol testing at the participant's expense.

4. Upon receiving a complaint or an application, the board shall screen the information submitted to determine whether the individual may be eligible for the intervention or alternative program. If eligible for one of the programs, the board may contact the individual and offer the program. If accepted, the board and individual may enter into a written agreement setting forth the requirements of the program. If declined, the board may proceed with its regular process of investigating a complaint or application as set forth in this chapter and chapter 324. The board shall retain sole discretion to offer the program at any time.

5. Upon successful completion of the intervention or alternative program, the licensee shall be deemed to have no disciplinary action against his or her license and shall not be required to disclose participation in the program. All records shall be deemed confidential and not public records under chapter 610 and not subject to court or administration subpoena or subject to discovery or introduction as evidence in any civil, criminal, or administrative proceedings.

6. If a licensee or applicant violates any term of the intervention program and the licensee or applicant denies the violation, the board may convene a hearing, after due notice to the licensee or applicant to determine whether such violation has occurred. The hearing shall be confidential and not open to the public under chapter 610. Records from the program shall be deemed admissible in the hearing. If the licensee or applicant admits to the violation, no hearing is required. If a violation is found by the board or admitted to by the licensee or applicant, the licensee's license shall be indefinitely suspended or the applicant's application shall not be acted upon until the licensee or applicant continues to fully participate in the program, has one year with no positive drug or alcohol screens, and completes a sobriety notebook. The licensee may then request that his or her license be reinstated or the applicant may then request the board act upon his or her application.

7. If a licensee does not successfully complete the intervention program, the board may pursue disciplinary action as set forth in section 335.066 and chapter 621. If an applicant does not successfully complete the intervention program, the board may issue an order pursuant to the provisions of chapters 324, 335, 536, and 621. Records from the program may be used as evidence in any such proceedings initiated under chapters 324, 335, 536, and 621. Any such licensee disciplined by the board pursuant to this section or applicant subject to an order pursuant to this section shall not be eligible to participate in the alternative program.

8. If a licensee or applicant violates any term of the alternative program and the licensee or applicant denies the violation, the board may convene a hearing, after due notice to the licensee or applicant to determine whether such violation has occurred. The hearing shall be confidential and not open to the public under chapter 610. Records from the program shall be deemed admissible in the hearing. If the licensee or applicant admits to the violation, no hearing is required. If a violation is found by the board or admitted to by the licensee or applicant, the licensee's license shall be indefinitely suspended or the applicant's application shall not be acted upon until the licensee or applicant continues to fully participate in the program, has one year with no positive drug or alcohol screens, and completes a sobriety notebook. The licensee may then request that his or her license be reinstated or the applicant may then request the board act upon his or her application.

9. If a licensee does not successfully complete the alternative program, the board may pursue disciplinary action as set forth in section 335.066 and chapter 621. If an applicant does not successfully complete the alternative program, the board may issue an order pursuant to the provisions of chapters 324, 335, and 621. Records from the program may be used as evidence in any such proceedings conducted pursuant to the provisions of chapters 324, 335, and 621.

10. The board may promulgate administrative rules subject to the provisions of this section and chapter 536 to effectuate and implement any programs formed pursuant to this section.

11. The board may expend appropriated funds necessary to provide for operational expenses of the programs formed pursuant to this section.

12. Any board member, board staff member, members of the programs, as well as any administrator, staff member, consultant, agent, or employee of the programs, acting within the scope of his or her duties and without actual malice, and all other persons who furnish information to the programs in good faith and without actual malice, shall not be liable for any claim of damages as a result of any statement, decision, opinion, investigation, or action taken by the programs, or by any individual member of the programs, by any board member, or by any board staff member.

13. All information, interviews, reports, statements, memoranda, drug or alcohol testing results, or other documents furnished to or produced by the programs, as well as communications to or from the programs, any findings, conclusions, interventions, treatment, rehabilitation, or other proceedings of the programs which in any way pertain to a licensee who may be, or who actually is, impaired shall be privileged and confidential, except that the board may share information with the licensee's employer or potential employer upon verification with the licensee that he or she is employed with the employer or actively seeking employment with the potential employer. Any records produced in conjunction with either program shall not be considered public records under chapter 610 and shall not be subject to court subpoena or subject to discovery or introduction as evidence in any civil, criminal, or administrative proceedings except as set forth in subsections 14 and 15 of this section.

14. Information may be disclosed relative to a licensee or applicant in either program only when:

(1) It is essential to disclose the information to further the intervention, treatment, or rehabilitation needs of the licensee or applicant and only to those persons or organizations with a need to know;

(2) Its release is authorized in writing by the licensee or applicant;

(3) A licensee has breached his or her contract with the program; or

(4) The information is subject to a court order.

15. The statute of limitations set forth in section 324.043 shall be tolled while a licensee or applicant is participating in either the intervention program or the alternative program.

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(L. 2007 H.B. 780 and L. 2007 S.B. 308, A.L. 2011 H.B. 315, A.L. 2018 H.B. 1719)