Bill Text: VA HB815 | 2024 | Regular Session | Enrolled
Bill Title: Medical cannabis program; product expiration, confidentiality, penalty.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2024-04-08 - Governor: Approved by Governor-Chapter 732 (effective 7/1/24) [HB815 Detail]
Download: Virginia-2024-HB815-Enrolled.html
Be it enacted by the General Assembly of Virginia:
1. That §§2.2-3705.3, 4.1-1602, and 4.1-1603 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Chapter 16 of Title 4.1 a section numbered 4.1-1606 as follows:
§2.2-3705.3. Exclusions to application of chapter; records relating to administrative investigations.
The following information contained in a public record is excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law. Redaction of information excluded under this section from a public record shall be conducted in accordance with §2.2-3704.01.
1. Information relating to investigations of applicants for licenses and permits, and of all licensees and permittees, made by or submitted to the Virginia Alcoholic Beverage Control Authority, the Virginia Cannabis Control Authority, the Virginia Lottery pursuant to Chapter 40 (§58.1-4000 et seq.) and Chapter 41 (§58.1-4100 et seq.) of Title 58.1, the Virginia Racing Commission, the Department of Agriculture and Consumer Services relating to investigations and applications pursuant to Article 1.1:1 (§18.2-340.15 et seq.) of Chapter 8 of Title 18.2, or the Private Security Services Unit of the Department of Criminal Justice Services.
2. Records of active investigations being conducted by the
Virginia Cannabis Control Authority or by the Department of Health
Professions or by any health regulatory board in the Commonwealth
pursuant to §54.1-108.
3. Investigator notes, and other correspondence and information, furnished in confidence with respect to an active investigation of individual employment discrimination complaints made to the Department of Human Resource Management, to such personnel of any local public body, including local school boards, as are responsible for conducting such investigations in confidence, or to any public institution of higher education. However, nothing in this subdivision shall prevent the disclosure of information taken from inactive reports in a form that does not reveal the identity of charging parties, persons supplying the information, or other individuals involved in the investigation.
4. Records of active investigations being conducted by the Department of Medical Assistance Services pursuant to Chapter 10 (§32.1-323 et seq.) of Title 32.1.
5. Investigative notes and other correspondence and information furnished in confidence with respect to an investigation or conciliation process involving an alleged unlawful discriminatory practice under the Virginia Human Rights Act (§2.2-3900 et seq.) or under any local ordinance adopted in accordance with the authority specified in §2.2-524, or adopted pursuant to §15.2-965, or adopted prior to July 1, 1987, in accordance with applicable law, relating to local human rights or human relations commissions. However, nothing in this subdivision shall prevent the distribution of information taken from inactive reports in a form that does not reveal the identity of the parties involved or other persons supplying information.
6. Information relating to studies and investigations by the Virginia Lottery of (i) lottery agents, (ii) lottery vendors, (iii) lottery crimes under §§58.1-4014 through 58.1-4018, (iv) defects in the law or regulations that cause abuses in the administration and operation of the lottery and any evasions of such provisions, or (v) the use of the lottery as a subterfuge for organized crime and illegal gambling where such information has not been publicly released, published or copyrighted. All studies and investigations referred to under clauses (iii), (iv), and (v) shall be open to inspection and copying upon completion of the study or investigation.
7. Investigative notes, correspondence and information furnished in confidence, and records otherwise exempted by this chapter or any Virginia statute, provided to or produced by or for (i) the Auditor of Public Accounts; (ii) the Joint Legislative Audit and Review Commission; (iii) an appropriate authority as defined in §2.2-3010 with respect to an allegation of wrongdoing or abuse under the Fraud and Abuse Whistle Blower Protection Act (§ 2.2-3009 et seq.); (iv) the Office of the State Inspector General with respect to an investigation initiated through the Fraud, Waste and Abuse Hotline or an investigation initiated pursuant to Chapter 3.2 (§2.2-307 et seq.); (v) internal auditors appointed by the head of a state agency or by any public institution of higher education; (vi) the committee or the auditor with respect to an investigation or audit conducted pursuant to §15.2-825; (vii) the auditors, appointed by the local governing body of any county, city, or town or a school board, who by charter, ordinance, or statute have responsibility for conducting an investigation of any officer, department, or program of such body; or (viii) the Behavioral Health Commission. Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of the complainants or persons supplying information to investigators. Unless disclosure is excluded by this subdivision, the information disclosed shall include the agency involved, the identity of the person who is the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation does not lead to corrective action, the identity of the person who is the subject of the complaint may be released only with the consent of the subject person. Local governing bodies shall adopt guidelines to govern the disclosure required by this subdivision.
8. The names, addresses, and telephone numbers of complainants furnished in confidence with respect to an investigation of individual zoning enforcement complaints or complaints relating to the Uniform Statewide Building Code (§36-97 et seq.) or the Statewide Fire Prevention Code (§27-94 et seq.) made to a local governing body.
9. Records of active investigations being conducted by the Department of Criminal Justice Services pursuant to Article 4 (§9.1-138 et seq.), Article 4.1 (§9.1-150.1 et seq.), Article 11 (§9.1-185 et seq.), and Article 12 (§9.1-186 et seq.) of Chapter 1 of Title 9.1.
10. Information furnished to or prepared by the Board of Education pursuant to subsection D of §22.1-253.13:3 in connection with the review or investigation of any alleged breach in security, unauthorized alteration, or improper administration of tests by local school board employees responsible for the distribution or administration of the tests. However, this section shall not prohibit the disclosure of such information to (i) a local school board or division superintendent for the purpose of permitting such board or superintendent to consider or to take personnel action with regard to an employee or (ii) any requester, after the conclusion of a review or investigation, in a form that (a) does not reveal the identity of any person making a complaint or supplying information to the Board on a confidential basis and (b) does not compromise the security of any test mandated by the Board.
11. Information contained in (i) an application for licensure or renewal of a license for teachers and other school personnel, including transcripts or other documents submitted in support of an application, and (ii) an active investigation conducted by or for the Board of Education related to the denial, suspension, cancellation, revocation, or reinstatement of teacher and other school personnel licenses including investigator notes and other correspondence and information, furnished in confidence with respect to such investigation. However, this subdivision shall not prohibit the disclosure of such (a) application information to the applicant at his own expense or (b) investigation information to a local school board or division superintendent for the purpose of permitting such board or superintendent to consider or to take personnel action with regard to an employee. Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of any complainant or person supplying information to investigators. The completed investigation information disclosed shall include information regarding the school or facility involved, the identity of the person who was the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation fails to support a complaint or does not lead to corrective action, the identity of the person who was the subject of the complaint may be released only with the consent of the subject person. No personally identifiable information regarding a current or former student shall be released except as permitted by state or federal law.
12. Information provided in confidence and related to an investigation by the Attorney General under Article 1 (§3.2-4200 et seq.) or Article 3 (§3.2-4204 et seq.) of Chapter 42 of Title 3.2, Article 10 (§ 18.2-246.6 et seq.) of Chapter 6 or Chapter 13 (§18.2-512 et seq.) of Title 18.2, or Article 1 (§58.1-1000) of Chapter 10 of Title 58.1. However, information related to an investigation that has been inactive for more than six months shall, upon request, be disclosed provided such disclosure is not otherwise prohibited by law and does not reveal the identity of charging parties, complainants, persons supplying information, witnesses, or other individuals involved in the investigation.
13. Records of active investigations being conducted by the Department of Behavioral Health and Developmental Services pursuant to Chapter 4 (§37.2-400 et seq.) of Title 37.2.
§4.1-1602. Permit to operate pharmaceutical processor or cannabis dispensing facility.
A. No person shall operate a pharmaceutical processor or a cannabis dispensing facility without first obtaining a permit from the Board. The application for such permit shall be made on a form provided by the Authority and signed by a pharmacist who will be in full and actual charge of the pharmaceutical processor's dispensing area or cannabis dispensing facility. The Board shall establish an application fee and other general requirements for such application.
B. Each permit shall expire annually on a date determined by the Board in regulation. The number of permits that the Board may issue or renew in any year is limited to one pharmaceutical processor and up to five cannabis dispensing facilities for each health service area established by the Board of Health. Permits shall be displayed in a conspicuous place on the premises of the pharmaceutical processor and cannabis dispensing facility.
C. The Board shall adopt regulations establishing health, safety, and security requirements for pharmaceutical processors and cannabis dispensing facilities. Such regulations shall include requirements for (i) physical standards; (ii) location restrictions; (iii) security systems and controls; (iv) minimum equipment and resources; (v) recordkeeping; (vi) labeling and packaging; (vii) routine inspections no more frequently than once annually; (viii) processes for safely and securely dispensing and delivering in person cannabis products to a patient, his registered agent, or, if such patient is a minor or a vulnerable adult as defined in §18.2-369, such patient's parent or legal guardian; (ix) dosage limitations for cannabis products that provide that each dispensed dose of a cannabis product not exceed 10 milligrams of total tetrahydrocannabinol, except as permitted under § 4.1-1603.2; (x) a process for the wholesale distribution of and the transfer of usable cannabis, botanical cannabis, cannabis oil, and cannabis products between pharmaceutical processors, between a pharmaceutical processor and a cannabis dispensing facility, and between cannabis dispensing facilities; (xi) an allowance for the sale of devices for administration of dispensed cannabis products and hemp-based CBD products that meet the applicable standards set forth in state and federal law, including the laboratory testing standards set forth in subsection N; (xii) an allowance for the use and distribution of inert product samples containing no cannabinoids for patient demonstration exclusively at the pharmaceutical processor or cannabis dispensing facility, and not for further distribution or sale, without the need for a written certification; (xiii) a process for acquiring industrial hemp extracts and formulating such extracts into cannabis products; and (xiv) an allowance for the advertising and promotion of the pharmaceutical processor's products and operations, which shall not limit the pharmaceutical processor from the provision of educational material to practitioners who issue written certifications and patients. The Board shall also adopt regulations for pharmaceutical processors that include requirements for (a) processes for safely and securely cultivating cannabis plants intended for producing cannabis products, (b) the disposal of agricultural waste, and (c) a process for registering cannabis products.
D. The Board shall require pharmaceutical processors, after
processing and before dispensing any cannabis products, to make a sample
available from each batch of cannabis product for testing by an independent
laboratory that is located in Commonwealth and meets Board requirements. A
valid sample size for testing shall be determined by each laboratory and may
vary due to sample matrix, analytical method, and laboratory-specific
procedures. A minimum sample size of 0.5 percent of individual units for dispensing
or distribution from each homogenized batch of cannabis oil is required to
achieve a representative cannabis oil sample for analysis. A minimum sample
size, to be determined by the certified testing laboratory, from each batch of
botanical cannabis is required to achieve a representative botanical cannabis
sample for analysis. Botanical cannabis products shall only be tested for the
following: total cannabidiol (CBD), total tetrahydrocannabinol (THC), terpenes,
pesticide chemical residue, heavy metals, mycotoxins, moisture, and
microbiological contaminants. Testing thresholds shall be consistent with
generally accepted cannabis industry thresholds. The pharmaceutical processor
may remediate botanical cannabis or cannabis oil that fails any quality testing
standard except pesticides. Following remediation, all remediated botanical
cannabis or cannabis oil shall be subject to laboratory testing, which shall
not be more stringent than initial testing prior to remediation. Remediated
botanical cannabis or cannabis oil that passes such quality testing may be
packaged and labeled. If a batch of botanical cannabis fails retesting after
remediation, it shall be considered usable cannabis and may be processed into
cannabis oil. Stability testing shall not be required for any cannabis product
with an expiration date assigned by the pharmaceutical processor of six
12 months or less from the date of the cannabis product registration
approval. Stability testing required for assignment of an expiration date
longer than six 12 months shall be limited to microbial testing,
on a pass/fail basis, and potency testing, on a 15 percent deviation basis, of
total THC and total CBD. No cannabis product shall have an expiration date
longer than six 12 months from the date of the cannabis product
registration approval unless supported by stability testing.
E. A laboratory testing samples for a pharmaceutical processor shall obtain a controlled substances registration certificate pursuant to § 54.1-3423 and shall comply with quality standards established by the Board of Pharmacy in regulation.
F. Every pharmaceutical processor's dispensing area or cannabis dispensing facility shall be under the personal supervision of a licensed pharmacist on the premises of the pharmaceutical processor or cannabis dispensing facility unless all cannabis products are contained in a vault or other similar container to which only the pharmacist has access controls. The pharmaceutical processor shall ensure that security measures are adequate to protect the cannabis from diversion at all times, and the pharmacist-in-charge shall have concurrent responsibility for preventing diversion from the dispensing area.
Every pharmaceutical processor shall designate a person who shall have oversight of the cultivation and production areas of the pharmaceutical processor and shall provide such information to the Board. The Board shall direct all communications related to enforcement of requirements related to cultivation and production of cannabis and cannabis products by the pharmaceutical processor to such designated person.
G. The Board shall require the material owners of an applicant for a pharmaceutical processor or cannabis dispensing facility permit to submit to fingerprinting and provide personal descriptive information to be forwarded along with his fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding the applicant's material owners. The cost of fingerprinting and the criminal history record search shall be paid by the applicant. The Central Criminal Records Exchange shall forward the results of the criminal history background check to the Board or its designee, which shall be a governmental entity.
H. A pharmaceutical processor shall maintain evidence of criminal background checks for all employees and delivery agents of the pharmaceutical processor. Criminal background checks of employees and delivery agents may be conducted by any service sufficient to disclose any federal and state criminal convictions.
I. In addition to other employees authorized by the Board, a
pharmaceutical processor may employ individuals who may have less than two
years one year of experience (i) to perform cultivation-related
duties under the supervision of an individual who has received a degree in a
field related to the cultivation of plants or a certification recognized by the
Board or who has at least two years one year of experience
cultivating plants, (ii) to perform extraction-related duties under the
supervision of an individual who has a degree in chemistry or pharmacology or
at least two years one year of experience extracting chemicals
from plants, and (iii) to perform duties at the pharmaceutical processor
and cannabis dispensing facility upon certification as a pharmacy technician,
and (iv) to serve as pharmacy technician trainees.
J. A pharmaceutical processor to whom a permit has been issued by the Board may (i) establish up to five cannabis dispensing facilities, subject to the permit requirement set forth in subsection B, for the dispensing of cannabis products that have been cultivated and produced on the premises of a pharmaceutical processor permitted by the Board and (ii) establish, if authorized by the Board, one additional location at which the pharmaceutical processor may cultivate cannabis plants. Each cannabis dispensing facility and the additional cultivation location shall be located within the same health service area as the pharmaceutical processor.
K. No person who has been convicted of a felony under the laws of the Commonwealth or another jurisdiction within the last five years shall be employed by or act as an agent of a pharmaceutical processor or cannabis dispensing facility.
L. Every pharmaceutical processor or cannabis dispensing facility shall adopt policies for pre-employment drug screening and regular, ongoing, random drug screening of employees.
M. A pharmacist at the pharmaceutical processor's dispensing area and the cannabis dispensing facility shall determine the number of pharmacy interns, pharmacy technicians, and pharmacy technician trainees who can be safely and competently supervised at one time; however, no pharmacist shall supervise more than six persons performing the duties of a pharmacy technician at one time in the pharmaceutical processor's dispensing area or cannabis dispensing facility.
N. A pharmaceutical processor may acquire from a registered industrial hemp handler or processor industrial hemp extracts that (i) are grown and processed in Virginia in compliance with state or federal law, and (ii) notwithstanding the tetrahydrocannabinol limits set forth in the definition of "industrial hemp extract" in §3.2-5145.1, contain a total tetrahydrocannabinol concentration of no greater than 0.3 percent. A pharmaceutical processor may process and formulate such extracts into an allowable dosage of cannabis product. Industrial hemp extracts acquired and formulated by a pharmaceutical processor are subject to the same third-party testing requirements that may apply to cannabis plant extract. Testing shall be performed by a laboratory located in Virginia and in compliance with state law governing the testing of cannabis products. The industrial hemp handler or processor shall provide such third-party testing results to the pharmaceutical processor before industrial hemp extracts may be acquired.
O. Product labels for all cannabis products and botanical cannabis shall be complete, accurate, easily discernable, and uniform among different products and brands. Pharmaceutical processors shall affix to all cannabis products and botanical cannabis a label, which shall also be accessible on the pharmaceutical processor's website, that includes:
1. The product name;
2. All active and inactive ingredients, including cannabinoids, terpenes, additives, preservatives, flavorings, sweeteners, and carrier oils;
3. The total percentage and milligrams of tetrahydrocannabinol and cannabidiol included in the product and the number of milligrams of tetrahydrocannabinol and cannabidiol in each serving;
4. The amount of product that constitutes a single serving and the amount recommended for use by the practitioner or dispensing pharmacist;
5. Information regarding the product's purpose and detailed usage directions;
6. Child and safety warnings in a conspicuous font; and
7. Such other information required by the Board.
P. A pharmaceutical processor or cannabis dispensing facility shall maintain an adequate supply of cannabis products that (i) contain cannabidiol as their primary cannabinoid and (ii) have low levels of or no tetrahydrocannabinol.
Q. With the exception of §2.2-4031, neither the provisions of the Administrative Process Act (§2.2-4000 et seq.) nor public participation guidelines adopted pursuant thereto shall apply to the adoption of any regulation pursuant to this section. Prior to adopting any regulation pursuant to this section, the Board shall publish a notice of opportunity to comment in the Virginia Register of Regulations and post the action on the Virginia Regulatory Town Hall. Such notice of opportunity to comment shall contain (i) a summary of the proposed regulation; (ii) the text of the proposed regulation; and (iii) the name, address, and telephone number of the agency contact person responsible for receiving public comments. Such notice shall be made at least 60 days in advance of the last date prescribed in such notice for submittals of public comment. The legislative review provisions of subsections A and B of § 2.2-4014 shall apply to the promulgation or final adoption process for regulations pursuant to this section. The Board shall consider and keep on file all public comments received for any regulation adopted pursuant to this section.
§4.1-1603. Dispensing cannabis products; report.
A. A pharmaceutical processor or cannabis dispensing facility shall dispense or deliver cannabis products only in person to (i) a patient who is a Virginia resident or temporarily resides in Virginia and has been issued a valid written certification; (ii) such patient's registered agent; or (iii) if such patient is a minor or a vulnerable adult as defined in §18.2-369, such patient's parent or legal guardian who is a Virginia resident or temporarily resides in Virginia. A companion may accompany a patient into a pharmaceutical processor's dispensing area or cannabis dispensing facility. Prior to the initial dispensing of cannabis products pursuant to each written certification, a pharmacist or pharmacy technician employed by the pharmaceutical processor or cannabis dispensing facility shall make and maintain, on site or remotely by electronic means, for two years a paper or electronic copy of the written certification that provides an exact image of the document that is clearly legible; shall view, in person or by audiovisual means, a current photo identification of the patient, registered agent, parent, or legal guardian; and shall verify current board registration of the corresponding registered agent if applicable. Thereafter, an initial dispensing may be delivered to the patient, registered agent, parent, legal guardian, or designated caregiver facility. Prior to any subsequent dispensing of cannabis products pursuant to each written certification, an employee or delivery agent shall view a current photo identification of the patient, registered agent, parent, or legal guardian and the current board registration issued to the registered agent if applicable. No pharmaceutical processor or cannabis dispensing facility shall dispense more than a 90-day supply, as determined by the dispensing pharmacist or certifying practitioner, for any patient during any 90-day period. A pharmaceutical processor or cannabis dispensing facility may dispense less than a 90-day supply of a cannabis product for any patient during any 90-day period; however, a pharmaceutical processor or cannabis dispensing facility may dispense more than one cannabis product to a patient at one time. No more than four ounces of botanical cannabis shall be dispensed for each 30-day period for which botanical cannabis is dispensed. In determining the appropriate amount of a cannabis product to be dispensed to a patient, a pharmaceutical processor or cannabis dispensing facility shall consider all cannabis products dispensed to the patient and adjust the amount dispensed accordingly.
B. A pharmaceutical processor or cannabis dispensing facility shall dispense only cannabis products produced on the premises of a pharmaceutical processor permitted by the Board or cannabis products that have been formulated with extracts from industrial hemp acquired by a pharmaceutical processor from a registered industrial hemp handler or processor pursuant to § 4.1-1602. A pharmaceutical processor may begin cultivation upon being issued a permit by the Board.
C. The Board shall report annually by December 1 to the Chairmen of the House Committee on General Laws and the Senate Committee on Rehabilitation and Social Services on the operation of pharmaceutical processors and cannabis dispensing facilities issued a permit by the Board.
D. The concentration of total tetrahydrocannabinol in any
cannabis product on site may be up to 15 percent greater than or less than the level
of total tetrahydrocannabinol listed in the approved cannabis product
registration. A pharmaceutical processor and cannabis dispensing facility shall
ensure that such concentration in any cannabis product on site is within such
range. A pharmaceutical processor producing cannabis products shall establish a
stability testing schedule of cannabis products that have an expiration date of
longer than six 12 months.
§4.1-1606. Confidentiality of reports, information, and records; penalty.
A. Except as otherwise provided in this section, any reports, information, or records received or maintained by the Board regarding active investigations or disciplinary proceedings for violations of this chapter shall be strictly confidential. The Board may only disclose such confidential information:
1. In a disciplinary proceeding before a health regulatory board or in any subsequent trial or appeal of an action or order;
2. To the permittee when entering into a confidential consent agreement;
3. To regulatory authorities tasked with granting, limiting, or denying licenses, certificates, or registrations to practice a health profession;
4. Pursuant to a court order for good cause arising from extraordinary circumstances;
5. To qualified personnel for bona fide research or educational purposes, provided that identifying information is redacted and the information is released pursuant to a written agreement that ensures compliance with this section;
6. To the Health Practitioners' Monitoring Program within the Department of Health Professions for the purpose of evaluating health practitioners who have applied to or participate in the Program; or
7. To the Joint Legislative Audit and Review Commission pursuant to §30-59.
B. In no event shall confidential information received, maintained, or developed by the Board or disclosed by the Board to others pursuant to this section be available for discovery or court subpoena or introduced into evidence in any civil action. This section shall not, however, be construed to inhibit an investigation or prosecution under Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2.
C. Any claim of a practitioner-patient privilege shall not prevail in any investigation or proceeding by the Board when acting within the scope of its authority. However, the disclosure of any information pursuant to this section shall not be deemed a waiver of such privilege in any other proceeding.
D. This section shall not prohibit the Board, after consultation with the relevant health regulatory board president or his designee, from disclosing to the Attorney General, or the appropriate attorney for the Commonwealth, investigatory information that indicates a possible violation of any provision of criminal law, including the laws relating to the manufacture, distribution, dispensing, prescribing, or administration of drugs, other than drugs classified as Schedule VI drugs and devices, by any individual regulated by the Board or any health regulatory board.
E. This section shall not prohibit the Board from (i) disclosing information regarding any (a) disciplinary action taken against a person holding a permit issued pursuant to this chapter in another state or in a federal health institution or any voluntary surrender of a license in another state while under investigation; (b) malpractice judgment against a person holding a permit issued pursuant to this chapter; or (c) settlement of a malpractice claim against a person holding a permit issued pursuant to this chapter or (ii) making any report of aggregate, non-identifying information.
F. This section shall not prohibit the Board, following consultation with any relevant health regulatory board president or his designee, from (i) disclosing information about a suspected violation of state or federal law or regulation to agencies within the Health and Human Resources Secretariat or to state or federal law-enforcement agencies having jurisdiction over the suspected violation or (ii) requesting an inspection or investigation of a permittee by such state or federal agency when the Board has reason to believe that a possible violation of state or federal law has occurred. Such disclosure shall not exceed the minimum information necessary to permit the state or federal agency having jurisdiction over the suspected violation of state or federal law or regulation to conduct an inspection or investigation. Disclosures by the Board pursuant to this subsection shall not be limited to requests for inspections or investigations of permittees. However, nothing in this subsection shall be construed to require the Board to make any disclosure or to permit any agency to which the Board makes a disclosure to re-disclose any information, reports, records, or materials received from the Board.
G. Whenever a complaint has been filed about a permittee under this chapter, the Board shall provide information to the source and the subject of the complaint regarding investigative and disciplinary procedures. Prior to interviewing a permittee who is the subject of a complaint, or at the time that the permittee is first notified in writing of the complaint, whichever occurs first, the Board shall provide the permittee with a copy of the complaint and any records or supporting documentation, unless such provision would materially obstruct a criminal or regulatory investigation. If the Board concludes that a disciplinary proceeding will not be instituted, the Board may send an advisory letter to the person who was the subject of the complaint. The Board may also inform the source of the complaint (i) that an investigation has been conducted, (ii) that the matter was concluded without a disciplinary proceeding, (iii) of the process the Board followed in making its determination, and (iv) if appropriate, that an advisory letter from the Board has been communicated to the person who was the subject of the complaint. In providing such information, the Board shall inform the source of the complaint that he is subject to the requirements of this section relating to confidentiality and discovery.
H. Orders and notices of the Board relating to disciplinary actions, other than confidential exhibits described in subsection I, shall be disclosed. The Board shall provide to the source of the complaint (i) information regarding the date and location of any disciplinary proceeding, allegations against the permittee, and the list of statutes and regulations the permittee is alleged to have violated prior to the proceeding and (ii) notice of the disposition of the disciplinary case.
I. In disciplinary actions in which a practitioner is or may be unable to practice with reasonable skill and safety to patients and the public because of a mental or physical disability, the Board shall consider whether to disclose and may decide not to disclose the practitioner's health records or services. Such information may be considered by the Board in a closed hearing and included in a confidential exhibit to a notice or order. The public notice or order shall identify, if known, the practitioner's mental or physical disability that is the basis for its determination. In the event that the Board determines that information should be withheld pursuant to this subsection, information contained in the confidential exhibit shall remain part of the Board's confidential record and is subject to court review under the Administrative Process Act (§2.2-4000 et seq.) and to release in accordance with this section.
J. This section shall not prohibit investigative staff authorized under §54.1-2506 or investigative staff of any other agency to which disclosure of information about a suspected violation of state or federal law or regulation is authorized by subsection F from interviewing fact witnesses, disclosing to fact witnesses the identity of the subject of the complaint, or reviewing with fact witnesses any portion of records or other supporting documentation necessary to refresh the fact witnesses' recollection.
K. The provisions of this section shall apply only to information collected or maintained by the Board pursuant to the provisions of this chapter.
L. Any person that discloses confidential information of the Board in violation of this section is guilty of a Class 1 misdemeanor.
