A.R.S. § 32-1664.01: Investigation of complaints; confidentiality; limits; notice; evaluations; time frame; definition

A. Notwithstanding any other provision of this chapter or chapter 32 of this title to the contrary:

1. Except as set forth in paragraph 3 of this subsection, the board shall require complainants to identify themselves in the complaint and make themselves available for an evidentiary interview. Complainants may request that their identity remain confidential during the investigatory process. If the investigatory process results in a determination that a violation of law may have occurred, the respondent is entitled to review the complete investigatory file, including the identity of the complainant except as provided in paragraph 2 of this subsection.

2. The board, solely at the board's discretion, on finding cause that a complainant may reasonably fear retaliation or be endangered if the complainant's identity is revealed or if the complaint directly impacts patient safety, may continue to maintain the complainant's confidentiality from the licensee until the conclusion of the investigative and administrative process. The board may conduct a closed evidentiary hearing if the complainant requests that the complainant's identity remain private and the board has a reasonable basis to conduct the hearing. A complainant's anonymity may continue until evidence by the complainant is required at an administrative proceeding pursuant to title 41 or a legal proceeding.

3. The board may take action on a complaint if the complainant refuses to identify himself or herself only if the board has sufficient information that a violation may have occurred within its jurisdiction that directly impacts the safety of patients without the testimony of the anonymous complainant. The board may attempt to substantiate an anonymous complaint through further investigation pursuant to the board's policies and may open a complaint against a licensee or certificate holder if the anonymous complaint is substantiated through corroboration from records, other witnesses, pattern evidence or data sources.

4. The board shall limit an investigation of a complaint to those investigative subjects and actions that are relevant and material to the issues raised in the complaint and that would reasonably be taken to investigate the issues in the complaint. This paragraph does not prohibit the board from investigating any issue or evidence of unprofessional conduct that is discovered or brought to the attention of the board during the investigation of the original complaint.

5. On reasonable belief that a crime has been committed, the board shall report the alleged criminal conduct to the appropriate criminal justice agency. If the board has a reasonable belief that conduct by a licensed, permitted or certificated individual or other entity over which the board does not have jurisdiction may violate the law or codes of conduct, the board shall report the conduct to the appropriate state regulatory board or state agency that the board reasonably believes has jurisdiction over the licensee, permittee or certificate holder or other entity.

6. The board shall implement a policy prioritizing complaints based on the harm to a patient or potentially to the public. The board shall assign the highest priority to complaints alleging sexual misconduct with a patient, abuse or neglect of a patient, practice beyond the scope of practice that created a significant risk of harm, criminal assault or theft or providing services while under the influence of any illegal or legal substance that impairs the licensee or certificate holder.

7. The board shall provide the respondent with a written notice stating that there is an open investigation, the substance of the complaint, that the respondent has the right to be represented by legal counsel and that the respondent has at least fifteen business days after receiving the written notice before the board requires a response, except that the board may require an immediate response or production of records when necessary to protect public health and safety. The written notice shall also inform the respondent that the board may use any statement the respondent makes against the respondent. The respondent may waive the fifteen-day time frame by written communication.

8. If the board determines that a psychological, psychiatric or other medical evaluation of the licensee or certificate holder is essential for the board to make a decision regarding a complaint and orders the licensee or certificate holder to obtain an evaluation, and the licensee or certificate holder requests that the evaluation be made by a professional other than the professional recommended by the board, the board or its designee shall consider the alternative evaluator's credentials, independence and conflict disclosure and may accept and approve an evaluation from a professional who has the credentials, training, expertise and impartiality required to address the issues the board has requested in its order.

9. Within one hundred eighty days after the board receives a complaint against a licensee or certificate holder, the board shall do one of the following:

(a) Submit the investigation for review.

(b) Administratively dismiss the complaint if the board finds it is unsubstantiated.

(c) Report a determination either that the complaint investigation cannot be reasonably completed within one hundred eighty days due to the complexity of the matter, the respondent's request for additional time to respond or causing delays in the investigation or the failure of a person or entity to timely respond to a board subpoena. If this determination is made, the board, within the one hundred eighty-day period, shall take one of the following actions:

(i) Continue the investigation for an additional one hundred days to complete the investigation and proceed with the administrative procedure to submit the complaint for final board review and action.

(ii) Administratively dismiss the complaint without prejudice. If the board administratively dismisses the complaint without prejudice, the board may reopen the investigation only if the board receives additional evidence, information or testimony sufficient to conclude the investigation within two years after the administrative dismissal as described in this item.

10. If another health profession regulatory board or a criminal justice agency is investigating the circumstances alleged in a complaint, the time frames prescribed in paragraph 9 of this subsection are suspended until the investigation is completed.

B. For the purposes of this section, "without prejudice" means that the board may open another complaint based on the same set of facts of a complaint that has been dismissed if additional evidence or information becomes available to substantiate the complaint, including new witnesses.