§ 1354. Unprofessional conduct

(a) The Board shall find that any one of the following, or any combination of the following, whether the conduct at issue was committed within or outside the State, constitutes unprofessional conduct:

(1) fraud or misrepresentation in applying for or procuring a medical license or in connection with applying for or procuring periodic renewal of a medical license;

(2) all advertising of medical business that is intended or has a tendency to deceive the public or impose upon credulous or ignorant persons and so be harmful or injurious to public morals or safety;

(3) [Repealed.]

(4) abandonment of a patient;

(5) habitual or excessive use or abuse of drugs, alcohol, or other substances that impair the licensee‘s ability to practice medicine;

(6) promotion by a physician of the sale of drugs, devices, appliances, or goods provided for a patient in such a manner as to exploit the patient for financial gain of the physician or selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes;

(7) conduct that evidences unfitness to practice medicine;

(8) willfully making and filing false reports or records in his or her practice as a physician;

(9) willful omission to file or record, or willfully impeding or obstructing a filing or recording, or inducing another person to omit to file or record medical reports required by law;

(10) failure to make available promptly to a person using professional health care services, that person’s representative, succeeding health care professionals, or institutions, when given proper written request and direction of the person using professional health care services, copies of that person’s records in the possession or under the control of the licensed practitioner;

(11) solicitation of professional patronage by agents or persons or profiting from the acts of those representing themselves to be agents of the licensed physician;

(12) division of fees or agreeing to split or divide the fees received for professional services for any person for bringing to or referring a patient;

(13) agreeing with clinical or bio-analytical laboratories to make payments to such laboratories for individual tests or test series for patients, unless the physician discloses on the bills to patients or third party payors the name of such laboratory, the amount or amounts to such laboratory for individual tests or test series, and the amount of his or her processing charge or procurement, if any, for each specimen taken;

(14) willful misrepresentation in treatments;

(15) practicing medicine with a physician who is not legally practicing within the State, or aiding or abetting such physician in the practice of medicine; except that it shall be legal to practice in an accredited preceptorship or residency training program or pursuant to section 1313 of this title;

(16) gross overcharging for professional services on repeated occasions, including filing of false statements for collection of fees for which services are not rendered;

(17) offering, undertaking, or agreeing to cure or treat disease by a secret method, procedure, treatment, or medicine;

(18) consistent improper utilization of services;

(19) consistent use of nonaccepted procedures that have a consistent detrimental effect upon patients;

(20) professional incompetency resulting from physical or mental impairment;

(21) permitting one’s name or license to be used by a person, group, or corporation when not actually in charge of or responsible for the treatment given;

(22) in the course of practice, gross failure to use and exercise on a particular occasion or the failure to use and exercise on repeated occasions, that degree of care, skill, and proficiency that is commonly exercised by the ordinary skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions, whether or not actual injury to a patient has occurred;

(23) revocation of a license to practice medicine or surgery, or other disciplinary sanction, by another jurisdiction on one or more of the grounds specified in this section;

(24) failure to comply with the provisions of 18 V.S.A. § 1852;

(25) failure to comply with an order of the Board or violation of any term or condition of a license that is restricted or conditioned by the Board;

(26) any physician who, in the course of a collaborative agreement with a nurse practitioner allows the nurse practitioner to perform a medical act that is outside the usual scope of the physician’s own practice or that the nurse practitioner is not qualified to perform by training or experience, or that the ordinary reasonable and prudent physician engaged in a similar practice would not agree should be written into the scope of the nurse practitioner’s practice;

(27) failure to comply with provisions of federal statutes or regulations, or the statutes or rules of this or any other state, governing the practice of medicine or surgery;

(28) practice of profession when medically or psychologically unfit to do so;

(29) delegation of professional responsibilities to a person whom the licensed professional knows, or has reason to know, is not qualified by training, experience, education, or licensing credentials to perform them;

(30) conviction of a crime related to the practice of the profession or conviction of a felony, whether or not related to the practice of the profession, or failure to report to the Board a conviction of any crime related to the practice of the profession or any felony in any court within 30 days of the conviction;

(31) use of the services of an anesthesiologist assistant by an anesthesiologist in a manner that is inconsistent with the provisions of chapter 29 of this title;

(32) use of the services of a radiologist assistant by a radiologist in a manner that is inconsistent with the provisions of chapter 52 of this title;

(33)(A) providing, prescribing, dispensing, or furnishing medical services or prescription medication or prescription-only devices to a person in response to any communication transmitted or received by computer or other electronic means, when the licensee fails to take the following actions to establish and maintain a proper physician-patient relationship:

(i) a reasonable effort to verify that the person requesting medication is in fact the patient, and is in fact who the person claims to be;

(ii) establishment of documented diagnosis through the use of accepted medical practices; and

(iii) maintenance of a current medical record;

(B) for the purposes of this subdivision (33), an electronic, on-line, or telephonic evaluation by questionnaire is inadequate for the initial evaluation of the patient;

(C) the following would not be in violation of this subdivision (33) if transmitted or received by computer or other electronic means:

(i) initial admission orders for newly hospitalized patients;

(ii) prescribing for a patient of another physician for whom the prescriber has taken the call;

(iii) prescribing for a patient examined by a licensed advanced practice registered nurse, physician assistant, or other advanced practitioner authorized by law and supported by the physician;

(iv) continuing medication on a short-term basis for a new patient, prior to the patient’s first appointment; or

(v) emergency situations where life or health of the patient is in imminent danger;

(34) failure to provide to the Board such information it may reasonably request in furtherance of its statutory duties. The patient privilege set forth in 12 V.S.A. § 1612 shall not bar the licensee’s obligations under this subsection (a) and no confidentiality agreement entered into in concluding a settlement of a malpractice claim shall exempt the licensee from fulfilling his or her obligations under this subdivision;

(35) disruptive behavior that involves interaction with physicians, hospital personnel, office staff, patients, or support persons of the patient or others that interferes with patient care or could reasonably be expected to adversely affect the quality of care rendered to a patient;

(36) commission of any sexual misconduct that exploits the physician-patient relationship, including sexual contact with a patient, surrogates, or key third parties;

(37) prescribing, selling, administering, distributing, ordering, or dispensing any drug legally classified as a controlled substance for the licensee’s own use or to an immediate family member as defined by rule;

(38) signing a blank or undated prescription form;

(39) [Repealed.]

(40) use of conversion therapy as defined in 18 V.S.A. § 8351 on a client younger than 18 years of age; or

(41) failure to comply with one or more of the notice, disclosure, or advertising requirements in 18 V.S.A. § 4502 for administering stem cell or stem cell-related products not approved by the U.S. Food and Drug Administration.

(b) The Board may also find that failure to practice competently by reason of any cause on a single occasion or on multiple occasions constitutes unprofessional conduct. Failure to practice competently includes, as determined by the Board:

(1) performance of unsafe or unacceptable patient care; or

(2) failure to conform to the essential standards of acceptable and prevailing practice.

(c) The burden of proof in a disciplinary action shall be on the State to show by a preponderance of the evidence that the person has engaged in unprofessional conduct.

(d)(1) Health care providers. Notwithstanding any other law to the contrary, no health care provider who is certified, registered, or licensed in Vermont shall be subject to professional disciplinary action by the Board, nor shall the Board take adverse action on an application for certification, registration, or licensure of a qualified health care provider, based solely on:

(A) the health care provider providing or assisting in the provision of legally protected health care activity; or

(B) a criminal, civil, or disciplinary action in another state against the health care provider that is based solely on the provider providing or assisting in the provision of legally protected health care activity.

(2) Definitions. As used in this subsection:

(A) “Health care provider” means a person who provides professional health care services to an individual during that individual’s medical care, treatment, or confinement.

(B) “Health care services” means services for the diagnosis, prevention, treatment, cure, or relief of a physical or mental health condition, including procedures, products, devices, and medications.

(C) “Legally protected health care activity” has the same meaning as in 1 V.S.A. § 150. (Amended 1967, No. 307 (Adj. Sess.), § 6, eff. March 22, 1968; 1975, No. 249 (Adj. Sess.), § 2; 1977, No. 259 (Adj. Sess.), § 6; 1985, No. 163 (Adj. Sess.), § 3; 1989, No. 161 (Adj. Sess.), §§ 1, 2; 1991, No. 167 (Adj. Sess.), § 31; 1993, No. 190 (Adj. Sess.), § 6, eff. June 11, 1994; 1993, No. 201 (Adj. Sess.), § 4; 2001, No. 132 (Adj. Sess.), § 8, eff. June 13, 2002; 2001, No. 151 (Adj. Sess.), § 19a, eff. June 27, 2002; 2003, No. 34, § 3, eff. May 23, 2003; 2009, No. 103 (Adj. Sess.), § 19c, eff. May 12, 2010; 2011, No. 61, § 2, eff. June 2, 2011; 2015, No. 138 (Adj. Sess.), § 3; 2017, No. 74, § 117; 2019, No. 123 (Adj. Sess.), § 2; 2019, No. 126 (Adj. Sess.), § 1; 2021, No. 61, § 3; 2023, No. 15, § 7, eff. May 10, 2023.)